EXHIBIT 4.1


 


EXECUTION COPY


 




 





[Published CUSIP Number:
                                ]


 


CREDIT
AGREEMENT


 


Dated as of December 21,
2007


 


among


 


MONSTER
WORLDWIDE, INC.


 


and


 


CERTAIN
SUBSIDIARIES,

as Borrowers,


 


BANK OF
AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,


 


CITIBANK,
N.A.,

as Syndication Agent,


 


and


 


The Other
Lenders Party Hereto


 






 


BANC OF
AMERICA SECURITIES LLC

and

CITIBANK GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Book Managers




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I.

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.02

  	
   

  	
  Other Interpretive Provisions

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.03

  	
   

  	
  Accounting Terms

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.04

  	
   

  	
  Rounding

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.05

  	
   

  	
  Exchange Rates; Currency Equivalents

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.06

  	
   

  	
  Additional Alternative Currencies

  	
   

  	
  26

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.07

  	
   

  	
  Change of Currency

  	
   

  	
  27

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.08

  	
   

  	
  Times of Day

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.09

  	
   

  	
  Letter of Credit Amounts

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.10

  	
   

  	
  Financial Determinations

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Committed Loans

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.02

  	
   

  	
  Borrowings, Conversions and Continuations of
  Committed Loans

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.03

  	
   

  	
  Letters of Credit

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.04

  	
   

  	
  Swing Line Loans

  	
   

  	
  40

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.05

  	
   

  	
  Prepayments

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.06

  	
   

  	
  Termination or Reduction of Commitments

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.07

  	
   

  	
  Repayment of Loans

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.08

  	
   

  	
  Interest

  	
   

  	
  44

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.09

  	
   

  	
  Fees

  	
   

  	
  45

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.10

  	
   

  	
  Computation of Interest and Fees

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.11

  	
   

  	
  Evidence of Debt

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.12

  	
   

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.13

  	
   

  	
  Sharing of Payments by Lenders

  	
   

  	
  48

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.14

  	
   

  	
  Designated Borrowers

  	
   

  	
  49

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.15

  	
   

  	
  Extension of Maturity Date

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.16

  	
   

  	
  Increase in Commitments

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD PROTECTION AND
  ILLEGALITY

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  
	
  3.01

  	
   

  	
  Taxes

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.02

  	
   

  	
  Illegality

  	
   

  	
  56

  
							



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  3.03

  	
   

  	
  Inability to Determine Rates

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.04

  	
   

  	
  Increased Costs

  	
   

  	
  56

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.05

  	
   

  	
  Compensation for Losses

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.06

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.07

  	
   

  	
  Survival

  	
   

  	
  59

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT TO CREDIT
  EXTENSIONS

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
   

  	
  Conditions of Initial Credit Extension

  	
   

  	
  60

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.02

  	
   

  	
  Conditions to all Credit Extensions

  	
   

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  
	
  5.01

  	
   

  	
  Existence, Qualification and Power

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.02

  	
   

  	
  Authorization; No Conflict

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.03

  	
   

  	
  Governmental Authorization; Other Consents

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.04

  	
   

  	
  Binding Effect

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.05

  	
   

  	
  Financial Statements; No Material Adverse Effect

  	
   

  	
  63

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.06

  	
   

  	
  Litigation

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.07

  	
   

  	
  No Default

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.08

  	
   

  	
  Ownership of Property; Liens

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.09

  	
   

  	
  Environmental Compliance

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.10

  	
   

  	
  Insurance

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.11

  	
   

  	
  Taxes

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.12

  	
   

  	
  ERISA Compliance

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.13

  	
   

  	
  Subsidiaries; Equity Interests

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.14

  	
   

  	
  Margin Regulations; Investment Company Act; Public
  Utility Holding Company Act

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.15

  	
   

  	
  Disclosure

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.16

  	
   

  	
  Compliance with Laws

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.17

  	
   

  	
  Taxpayer Identification Number; Other Identifying
  Information

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.18

  	
   

  	
  Intellectual Property; Licenses, Etc

  	
   

  	
  66

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.19

  	
   

  	
  Representations as to Foreign Obligors

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
  68

  
							



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  6.01

  	
   

  	
  Financial Statements

  	
   

  	
  68

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.02

  	
   

  	
  Certificates; Other Information

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.03

  	
   

  	
  Notices

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.04

  	
   

  	
  Payment of Obligations

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.05

  	
   

  	
  Preservation of Existence, Etc

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.06

  	
   

  	
  Maintenance of Properties

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.07

  	
   

  	
  Maintenance of Insurance

  	
   

  	
  71

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.08

  	
   

  	
  Compliance with Laws

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.09

  	
   

  	
  Books and Records

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.10

  	
   

  	
  Inspection Rights

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.11

  	
   

  	
  Use of Proceeds

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.12

  	
   

  	
  Approvals and Authorizations

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.13

  	
   

  	
  Additional Subsidiary Guarantors

  	
   

  	
  72

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE COVENANTS

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.01

  	
   

  	
  Liens

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.02

  	
   

  	
  Investments

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.03

  	
   

  	
  Indebtedness

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.04

  	
   

  	
  Fundamental Changes

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.05

  	
   

  	
  Dispositions

  	
   

  	
  77

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.06

  	
   

  	
  Restricted Payments

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.07

  	
   

  	
  Change in Nature of Business

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.08

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.09

  	
   

  	
  Burdensome Agreements

  	
   

  	
  79

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.10

  	
   

  	
  Use of Proceeds

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.11

  	
   

  	
  Financial Covenants

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.01

  	
   

  	
  Events of Default

  	
   

  	
  80

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.02

  	
   

  	
  Remedies Upon Event of Default

  	
   

  	
  82

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.03

  	
   

  	
  Application of Funds

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
   

  	
  84

  



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  9.01

  	
   

  	
  Appointment and Authority

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.02

  	
   

  	
  Rights as a Lender

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.03

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  84

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.04

  	
   

  	
  Reliance by Administrative Agent

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.05

  	
   

  	
  Delegation of Duties

  	
   

  	
  85

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.06

  	
   

  	
  Resignation of Administrative Agent

  	
   

  	
  86

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.07

  	
   

  	
  Non-Reliance on Administrative Agent and Other
  Lenders

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.08

  	
   

  	
  No Other Duties, Etc

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.09

  	
   

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
  87

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.10

  	
   

  	
  Guaranty Matters

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.01

  	
   

  	
  Amendments, Etc

  	
   

  	
  88

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.02

  	
   

  	
  Notices; Effectiveness; Electronic Communication

  	
   

  	
  89

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.03

  	
   

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.04

  	
   

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.05

  	
   

  	
  Payments Set Aside

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.06

  	
   

  	
  Successors and Assigns

  	
   

  	
  94

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.07

  	
   

  	
  Treatment of Certain Information; Confidentiality

  	
   

  	
  98

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.08

  	
   

  	
  Right of Setoff

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.09

  	
   

  	
  Interest Rate Limitation

  	
   

  	
  99

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.10

  	
   

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.11

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.12

  	
   

  	
  Severability

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.13

  	
   

  	
  Replacement of Lenders

  	
   

  	
  100

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.14

  	
   

  	
  Governing Law; Jurisdiction; Etc

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.15

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  102

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.16

  	
   

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.17

  	
   

  	
  USA PATRIOT Act Notice

  	
   

  	
  103

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.18

  	
   

  	
  Judgment Currency

  	
   

  	
  103

  



 


iv

















 


	
   

  	
  SIGNATURES

  	
   

  	
  S-1

  



 


SCHEDULES


 


	
  1.01

  	
  Mandatory Cost Formulae

  
	
  1.02

  	
  Existing Letters of Credit

  
	
  2.01

  	
  Commitments and Applicable Percentages

  
	
  5.13

  	
  Subsidiaries; Other Equity Investments

  
	
  7.01

  	
  Existing Liens

  
	
  7.03

  	
  Existing Indebtedness

  
	
  10.02

  	
  Administrative Agent’s Office; Certain
  Addresses for Notices

  
	
  10.06

  	
  Processing and Recordation Fees

  








EXHIBITS


 


Form of


 


	
  A

  	
  Committed Loan Notice

  
	
  B

  	
  Swing Line Loan Notice

  
	
  C

  	
  Note

  
	
  D

  	
  Compliance Certificate

  
	
  E

  	
  Assignment and Assumption

  
	
  F

  	
  Company Guaranty

  
	
  G

  	
  Subsidiary Guaranty

  
	
  H

  	
  Designated Borrower Request and Assumption
  Agreement

  
	
  I

  	
  Designated Borrower Notice

  



 


 


v

















 


CREDIT
AGREEMENT


 


This CREDIT
AGREEMENT (this “Agreement”) is entered into as of December 21,
2007,  among MONSTER WORLDWIDE, INC., a
Delaware corporation (the “Company”), certain Subsidiaries of the
Company party hereto pursuant to Section 2.14 (each a “Designated
Borrower” and, together with the Company, the “Borrowers” and, each
a “Borrower”), each lender from time to time party hereto (collectively,
the “Lenders” and individually, a “Lender”), and BANK OF AMERICA,
N.A.,  as Administrative Agent, Swing Line
Lender and L/C Issuer.


 


The Company
has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01                        Defined
Terms.  As used in this Agreement,
the following terms shall have the meanings set forth below:


 


“Administrative
Agent” means Bank of America in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.


 


“Administrative
Agent’s Office” means, with respect to any currency, the Administrative
Agent’s address and, as appropriate, account as set forth on Schedule 10.02
with respect to such currency, or such other address or account with respect to
such currency as the Administrative Agent may from time to time notify to the
Company and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in a form supplied by
the Administrative Agent.


 


“Affiliate”
means, with respect to any Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.


 


“Aggregate
Commitments” means the Commitments of all the Lenders.


 


“Agreement”
has the meaning specified in the introductory paragraph hereto.


 


“Alternative
Currency” means each of Euro, Sterling, Yen, Swedish Krona and each other
currency (other than Dollars) that is approved in accordance with Section 1.06.


 


“Alternative
Currency Equivalent” means, at any time, with respect to any amount
denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent or the L/C
Issuer, as the case may be, at such time on the basis of the Spot Rate
(determined in respect of the most recent Revaluation Date) for the purchase of
such Alternative Currency with Dollars.


 

















 


“Applicable
Percentage” means, with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time.  If the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02 or if the Aggregate
Commitments have expired, then the Applicable Percentage of each Lender shall
be determined based on the Applicable Percentage of such Lender most recently
in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.


 


“Applicable
Rate” means, from time to time, the following rates per annum (expressed in
basis points), based upon the Consolidated Leverage Ratio as set forth below:


 


Applicable Rate


 


	
  Pricing

  Level

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurocurrency

  Rate Loans and

  Letters of Credit

  	
   

  	
  Base Rate

  Loans

  	
   

  	
  Utilization

  Fee

  	
   

  
	
  1

  	
   

  	
  < 0.50:1

  	
   

  	
  8.0 bps

  	
   

  	
  30.0 bps

  	
   

  	
  0.00 bps

  	
   

  	
  5.0 bps

  	
   

  
	
  2

  	
   

  	
  > 0.50:1 but < 1.00:1

  	
   

  	
  10.0 bps

  	
   

  	
  40.0 bps

  	
   

  	
  0.00 bps

  	
   

  	
  5.0 bps

  	
   

  
	
  3

  	
   

  	
  > 1.00:1 but < 1.50:1

  	
   

  	
  12.5 bps

  	
   

  	
  55.0 bps

  	
   

  	
  0.00 bps

  	
   

  	
  5.0 bps

  	
   

  
	
  4

  	
   

  	
  > 1.50:1 but < 2.00:1

  	
   

  	
  15.0 bps

  	
   

  	
  65.0 bps

  	
   

  	
  0.00 bps

  	
   

  	
  10.0 bps

  	
   

  
	
  5

  	
   

  	
  > 2.00:1

  	
   

  	
  17.5 bps

  	
   

  	
  77.5 bps

  	
   

  	
  0.00 bps

  	
   

  	
  10.0 bps

  	
   

  



 


Any increase or decrease in the Applicable Rate resulting from a change
in the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to Section 6.02(b); provided that if a Compliance
Certificate is not delivered when due in accordance with such Section, then the
next higher Pricing Level to the Pricing Level then in effect (with Pricing
Level 1 being the lowest and Pricing Level 5 being the highest) shall apply as
of the first Business Day after the date on which such Compliance Certificate
was required to have been delivered.


 


“Applicable
Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Administrative Agent or the L/C Issuer, as
the case may be, to be necessary for timely settlement on the relevant date in
accordance with normal banking procedures in the place of payment.


 


“Applicant
Borrower” has the meaning specified in Section 2.14.


 


“Approved
Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


2

















 


“Arrangers”
means, collectively, Banc of America Securities
LLC and Citibank Global Markets Inc., in their capacities as joint lead
arrangers and joint book managers.


 


“Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 10.06(b),
and accepted by the Administrative Agent, in substantially the form of Exhibit E
or any other form approved by the Administrative Agent.


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any capital lease
of any Person, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended December 31, 2006,
and the related consolidated statements of operations, shareholders’ equity and
cash flows for such fiscal year of the Company and its Subsidiaries, including
the notes thereto.


 


“Availability
Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the
Aggregate Commitments pursuant to Section 2.06, and (c) the
date of termination of the commitment of each Lender to make Loans and of the
obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.


 


“Bank of
America” means Bank of America, N.A. and its successors.


 


“Base Rate”
means for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its “prime
rate.”  The “prime rate” is a rate set by
Bank of America based upon various factors including Bank of America’s costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate.  Any change in
such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.


 


“Base Rate
Committed Loan” means a Committed Loan that is a Base Rate Loan.


 


“Base Rate
Loan” means a Loan that bears interest
based on the Base Rate.  All Base Rate
Loans shall be denominated in Dollars.


 


“Borrower”
and “Borrowers” each has the meaning specified in the introductory
paragraph hereto.


 


3

















 


“Borrower
Materials” has the meaning specified in Section 6.02.


 


“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the State of New York:


 


(a)                                  if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Dollars, any fundings, disbursements, settlements and payments
in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings
in Dollars to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means any such day on which dealings in deposits in
Dollars are conducted by and between banks in the London interbank eurodollar
market;


 


(b)                                 if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in Euro, any fundings, disbursements, settlements and payments in
Euro in respect of any such Eurocurrency Rate Loan, or any other dealings in
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan, means a TARGET Day;


 


(c)                                  if
such day relates to any interest rate settings as to a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, means any such day on
which dealings in deposits in the relevant currency are conducted by and
between banks in the London or other applicable offshore interbank market for
such currency; and


 


(d)                                 if
such day relates to any fundings, disbursements, settlements and payments in a
currency other than Dollars or Euro in respect of a Eurocurrency Rate Loan
denominated in a currency other than Dollars or Euro, or any other dealings in
any currency other than Dollars or Euro to be carried out pursuant to this
Agreement in respect of any such Eurocurrency Rate Loan (other than any
interest rate settings), means any such day on which banks are open for foreign
exchange business in the principal financial center of the country of such
currency.


 


“Cash
Collateralize” has the meaning specified in Section 2.03(g).


 


“Change in
Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation
or treaty, (b) any change in any law, rule, regulation or treaty or in the
interpretation or application thereof by any Governmental Authority with
competent jurisdiction.


 


“Change of
Control” means an event or series of events by which:


 


(a)                                  any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934, but excluding any employee benefit plan of
such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such
plan) (other than Andrew McKelvey 


 


4

















 


or any of his spouse, parents, siblings, children, beneficiaries,
affiliates, executors, administrators or heirs) becomes the “beneficial owner”
(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial
ownership” of all securities that such person or group has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time (such right, an “option right”)), directly or
indirectly, of 25% or more of the equity securities of the Company entitled to
vote for members of the board of directors or equivalent governing body of the
Company on a fully-diluted basis (and taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right);


 


(b)                                 during
any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of
one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors);
or


 


(c)                                  any
Person or two or more Persons acting in concert (other than Andrew McKelvey or
any of his spouse, parents, siblings, children, beneficiaries, affiliates,
executors, administrators or heirs) shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon
consummation thereof, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the management
or policies of the Company, or control over the equity securities of the
Company entitled to vote for members of the board of directors or equivalent
governing body of the Company on a fully-diluted basis (and taking into account
all such securities that such Person or group has the right to acquire pursuant
to any option right) representing 25% or more of the combined voting power of
such securities.


 


“Closing
Date” means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 10.01.


 


“Code”
means the Internal Revenue Code of 1986, as amended to the date hereof and from
time to time hereafter, and any successor statute.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrowers pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and 


 


5

















 


(c) purchase participations in Swing Line Loans, in an aggregate
principal amount at any one time outstanding not to exceed the Dollar amount
set forth opposite such Lender’s name on Schedule 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement.


 


“Committed
Borrowing” means a borrowing consisting of simultaneous Committed Loans of
the same Type, in the same currency, and, in the case of Eurocurrency Rate
Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.


 


“Committed
Loan” has the meaning specified in Section 2.01.


 


“Committed
Loan Notice” means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a
continuation of Eurocurrency Rate Loans, pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit A.


 


“Company”
has the meaning specified in the introductory paragraph hereto.


 


“Company
Guaranty” means the Company Guaranty made by the Company in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit F.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit D.


 


“Consolidated
EBITDA” means, for any period, for the Company and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus
(a) the following to the extent deducted in calculating such Consolidated
Net Income: (i) Consolidated Interest Charges for such period, (ii) the
provision for Federal, state, local and foreign income taxes payable by the
Company and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) other expenses of the Company and its
Subsidiaries reducing such Consolidated Net Income which do not represent a
cash item in such period or any future period and (v) any costs or
expenses incurred pursuant to any management equity plan or stock option plan
or any other management or employee benefit plan or agreement or any stock
subscription or shareholder agreement, to the extent that such costs or
expenses are funded with cash proceeds contributed to the capital of the
Company or net cash proceeds of an issuance of Equity Interests and minus
(b) the following to the extent included in calculating such Consolidated
Net Income: (i) Federal, state, local and foreign income tax credits of
the Company and its Subsidiaries for such period and (ii) all non-cash
items increasing Consolidated Net Income for such period.


 


“Consolidated
Funded Indebtedness” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term,
for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business), (e) Attributable
Indebtedness in respect of capital leases and 


 


6

















 


Synthetic Lease Obligations, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types specified in clauses
(a) through (e) above of Persons other than the Company or
any Subsidiary, and (g) all Indebtedness of the types referred to in clauses
(a) through (f) above of any partnership or joint venture
(other than a joint venture that is itself a corporation, limited partnership
or limited liability company) in which the Company or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to the Company or such Subsidiary (or the Company or such
Subsidiary is not otherwise liable for such indebtedness).


 


“Consolidated
Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Company and
its Subsidiaries in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets, in each
case to the extent treated as interest in accordance with GAAP, (b) any
losses on hedging obligations or other derivative instruments entered into for the
purposes of hedging interest rate risk, minus interest income and gains
on such hedging obligations and (c) the portion of rent expense of the
Company and its Subsidiaries with respect to such period under capital leases
that is treated as interest in accordance with GAAP, in each case paid in cash
during such period.   For the avoidance
of doubt, Consolidated Interest Charges shall not include any interest in
respect of any item excluded from the definition of Indebtedness.


 


“Consolidated
Interest Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDA for the period of the four prior fiscal
quarters ending on such date to (b) Consolidated Interest Charges for such
period.


 


“Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated
Funded Indebtedness as of such date to (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended.


 


 “Consolidated Net Income” means, for
any period, for the Company and its Subsidiaries on a consolidated basis, the
net income of the Company and its Subsidiaries (excluding extraordinary gains
and extraordinary losses) for that period.


 


“Contractual
Obligation” means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


“Credit
Extension” means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.


 


“Debtor
Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the 


 


7

















 


United States or other applicable jurisdictions from time to time in
effect and affecting the rights of creditors generally.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would be an Event of
Default.


 


“Default
Rate” means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided that with respect to a Eurocurrency
Rate Loan, the Default Rate shall be an interest rate equal to the interest
rate (including any Applicable Rate and any Mandatory Cost) otherwise
applicable to such Loan plus 2% per annum, and (b) when used with respect
to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2%
per annum.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Committed Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder unless such failure has been
cured, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within
one Business Day of the date when due, unless the subject of a good faith
dispute or unless such failure has been cured, or (c) has been deemed
insolvent or become the subject of a bankruptcy or insolvency proceeding.


 


“Designated
Borrower” has the meaning specified in the introductory paragraph hereto.


 


“Designated
Borrower Notice” has the meaning specified in Section 2.14.


 


“Designated
Borrower Request and Assumption Agreement” has the meaning specified in Section 2.14.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


“Dollar”
and “$” mean lawful money of the United States.


 


“Dollar
Equivalent” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent or the L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States.


 


8

















 


“Eligible
Assignee” means any Person that meets the requirements to be an assignee
under Section 10.06(b)(iii), (v) and (vi) (subject
to such consents, if any, as may be required under Section 10.06(b)(iii)).


 


“EMU”
means the economic and monetary union in accordance with the Treaty of Rome
1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992
and the Amsterdam Treaty of 1998.


 


“EMU
Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.


 


“Environmental
Laws” means any and all applicable Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, licenses, agreements or governmental restrictions relating to
pollution and the protection of the environment or the release of any materials
into the environment, including those related to hazardous substances or
wastes, air emissions and discharges to waste or public systems.


 


“Environmental
Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Company, any other Loan Party or any of their respective
Subsidiaries directly or indirectly resulting from or based upon (a) violation
of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any
Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


 


“Equity
Interests” means, with respect to any Person, all of the shares of capital
stock of (or other ownership or profit interests in) such Person, all of the
warrants, options or other rights for the purchase or acquisition from such
Person of shares of capital stock of (or other ownership or profit interests
in) such Person, all of the securities convertible into or exchangeable for shares
of capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are outstanding on any date of
determination.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Company within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any 


 


9

















 


ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of
intent to terminate, the treatment of a Plan amendment as a termination under Section 4041
or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate
a Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Company or any ERISA Affiliate.


 


“Euro”
and “EUR” mean the lawful currency of the Participating Member States
introduced in accordance with the EMU Legislation.


 


“Eurocurrency
Rate” means, for any Interest Period with respect to a Eurocurrency Rate
Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR as designated by the Administrative Agent
from time to time) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period (or, in the case of
Eurocurrency Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing, in accordance with such market practice),
for deposits in the relevant currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period.  If such rate is not available at such time
for any reason, then the “Eurocurrency Rate” for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at
which deposits in the relevant currency for delivery on the first day of such
Interest Period in Same Day Funds in the approximate amount of the Eurocurrency
Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch (or other Bank of America branch or Affiliate) to major banks in the
London or other offshore interbank market for such currency at their request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.


 


“Eurocurrency
Rate Loan” means a Committed Loan that bears interest at a rate based on
the Eurocurrency Rate.  Eurocurrency Rate
Loans may be denominated in Dollars or in an Alternative Currency.  All Committed Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans.


 


“Event of
Default” has the meaning specified in Section 8.01.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of any Borrower hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated and whether worldwide or only
insofar as such net income is considered to arise in or relate to a particular
jurisdiction), 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 such recipient is organized or in which its principal office is, or
formerly was, located or, in the case of any Lender, in which its applicable
Lending Office is located and/or in which it (and/or, in the case of a Lender,
its Lending Office) is deemed to be doing business, (b) any branch profits
taxes imposed by the United States or any similar tax imposed by any other
jurisdiction in which such 


 


10

















 


Borrower is located and (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Company under Section 10.13),
any withholding tax that is imposed on amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section 3.01(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the applicable Borrower with respect to such
withholding tax pursuant to Section 3.01(a).  Notwithstanding anything to the contrary
contained in this definition, “Excluded Taxes” shall not include any
withholding tax imposed at any time on payments made by or on behalf of a
Foreign Obligor to any Lender hereunder or under any other Loan Document, provided
that such Lender shall have complied with the last paragraph of Section 3.01(e).


 


“Existing
Credit Agreement” means the Amended and Restated Secured Revolving Credit
Agreement, dated January 14, 2005, among the Company, Monster Worldwide
Limited (f/k/a TMP Worldwide Limited) and Bartlett Scott Edgar Limited, as Borrowers,
the several Lenders from time to time parties thereto, Banc of America
Securities, LLC, as sole lead arranger and book manager, Bank of America, N.A.,
as administrative agent, the Royal Bank of Scotland plc, as syndication agent,
and LaSalle Bank National Association, as documentation agent.


 


“Existing
Letters of Credit” means, collectively, the letters of credit listed on Schedule
1.02.


 


“Federal
Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by
the Administrative Agent.


 


“Fee Letter”
means the letter agreement, dated November 5, 2007, among the Company, the
Administrative Agent and the Arrangers.


 


“Foreign
Lender” means, with respect to any Borrower, any Lender that is organized
under the laws of a jurisdiction other than that in which such Borrower is
resident for tax purposes.  For purposes
of this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.


 


“Foreign
Obligor” means a Loan Party that is a Foreign Subsidiary.


 


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


 


11

















 


“FRB”
means the Board of Governors of the Federal Reserve System of the United
States.


 


“Fund”
means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and
similar extensions of credit in the ordinary course of its business.


 


“GAAP”
means generally accepted accounting principles in the United States.


 


“Governmental
Authority” means the government of the United States or any other nation,
or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including
any supra-national bodies such as the European Union or the European Central
Bank).


 


“Guarantee”
means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such Indebtedness
or other obligation, (iii) to maintain working capital, equity capital or
any other financial statement condition or liquidity or level of income or cash
flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or
other obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is
assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien); provided that the term “Guarantee”
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business or customary and reasonable indemnity obligations
in effect on the Closing Date or entered into in connection with any
acquisition or disposition of assets permitted under this Agreement.  The amount of any Guarantee referred to (x) in
clause (a) shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith and (y) shall be the lesser of the
amount referred to in clause (x) and the value of the property subject to
a lien, to the extent that such obligation is non-recourse other than to such
property.  The term “Guarantee” as a verb
has a corresponding meaning.


 


“Guaranties”
means, collectively, the Company Guaranty and the Subsidiary Guaranty.


 


12

















 


“Hazardous
Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum
or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all
other hazardous or toxic substances or wastes of any nature regulated pursuant
to any Environmental Law.


 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


(a)                                  all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;


 


(b)                                 all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments;


 


(c)                                  net
obligations of such Person under any Swap Contract;


 


(d)                                 all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business
and, in each case, not past due for more than 60 days after the date on which
such trade account payable is due);


 


(e)                                  indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited in recourse;


 


(f)                                    capital
leases and Synthetic Lease Obligations;


 


(g)                                 all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred interest, at the greater
of its voluntary or involuntary liquidation preference plus accrued and
unpaid dividends; and


 


(h)                                 all
Guarantees of such Person in respect of any of the foregoing.


 


For all
purposes hereof, the Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture (other than a joint venture that is itself
a corporation, limited partnership or limited liability company) in which such
Person is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (or such Person is not otherwise liable for
such indebtedness).  The amount of any
net obligation under any Swap Contract on any date shall be deemed to be the
Swap Termination Value thereof as of such date. 
The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.  Notwithstanding
the foregoing, the term Indebtedness shall not include deferred or prepaid
revenue.


 


13

















 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitees”
has the meaning specified in Section 10.04(b).


 


“Information”
has the meaning specified in Section 10.07.


 


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided that if any Interest Period for a Eurocurrency Rate Loan
exceeds three months, the respective dates that fall every three months after
the beginning of such Interest Period shall also be Interest Payment Dates; and
(b) as to any Base Rate Loan (including a Swing Line Loan), the last
Business Day of each March, June, September and December and the
Maturity Date.


 


“Interest
Period” means, as to each Eurocurrency Rate Loan, the period commencing on
the date such Eurocurrency Rate Loan is disbursed or converted to or continued
as a Eurocurrency Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Company in its Committed Loan Notice or such
other period that is twelve months or less requested by the Company and
consented to by all the Lenders; provided that:


 


(i)                                     any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;


 


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


 


(iii)                               no
Interest Period shall extend beyond the Maturity Date.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities of another Person, (b) a loan, advance
or capital contribution to, Guarantee or assumption of debt of, or purchase or
other acquisition of any other debt or equity participation or interest in,
another Person, including any partnership or joint venture interest in such
other Person and any arrangement pursuant to which the investor Guarantees
Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit. 
For purposes of covenant compliance, the amount of any Investment shall
be the amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment.


 


“IP Rights”
means all material trademarks, service marks, trade names, copyrights, patents,
patent rights, franchises, licenses and other intellectual property rights.


 


“IRS”
means the United States Internal Revenue Service.


 


14

















 


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).


 


“Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and the Company (or any Subsidiary) or in favor the L/C Issuer and relating to
such Letter of Credit.


 


“Laws”
means, collectively, all applicable international, foreign, Federal, state and
local statutes, treaties, rules, regulations, ordinances, codes and binding and
current administrative or judicial precedents or authorities, including the interpretation
or administration thereof by any Governmental Authority with competent
jurisdiction charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, licenses, authorizations and
permits of, and agreements with, any such Governmental Authority.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable
Percentage.  All L/C Advances shall be
denominated in Dollars.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Committed Borrowing.  All
L/C Borrowings shall be denominated in Dollars.


 


“L/C Credit
Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.


 


“L/C Issuer”
means, collectively, Bank of America, such other Lenders (not to exceed five in
the aggregate) as the Company may select and, with respect to foreign Existing
Letters of Credit, LaSalle Bank, National Association, in their capacities as
issuers of Letters of Credit hereunder, or any successor issuer of Letters of
Credit hereunder.


 


“L/C
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.


 


“Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the Company and the
Administrative Agent.


 


15

















 


“Letter of
Credit” means any standby letter of credit issued hereunder  and shall include Existing Letters of Credit.  Letters of Credit may be issued in Dollars or
in an Alternative Currency.


 


“Letter of
Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the L/C
Issuer.


 


“Letter of
Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).


 


“Letter of
Credit Fee” has the meaning specified in Section 2.03(i).


 


“Letter of
Credit Sublimit” means an amount equal to $50,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Commitments.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, encumbrance, lien
(statutory or other), charge, or preference, priority or other security
interest or preferential arrangement in the nature of a security interest of
any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any easement, right of way or other encumbrance on title
to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).


 


“Loan”
means an extension of credit by a Lender to a Borrower under Article II
in the form of a Committed Loan or a Swing Line Loan.


 


“Loan
Documents” means this Agreement, each Designated Borrower Request and
Assumption Agreement, each Note, each Issuer Document, the Fee Letter and the
Guaranties.


 


“Loan
Parties” means, collectively, the Company, each Subsidiary Guarantor and
each Designated Borrower.


 


“Mandatory
Cost” means, with respect to any period, the percentage rate per annum
determined in accordance with Schedule 1.01.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent), condition (financial or otherwise) of the Company and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and
remedies of the Administrative Agent or any Lender under any Loan Document or
of the ability of the Company or any other Loan Party to perform its
obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which it is a
party.


 


“Material
Subsidiary” means, as of any date, any Subsidiary of the Company which
(together with its Subsidiaries) accounts for 5% or more of revenues of the
Company and its Subsidiaries on a consolidated basis as of such date.


 


16

















 


“Maturity
Date” means the later of (a) December 21, 2012 and (b) if
maturity is extended pursuant to Section 2.15, such extended
maturity date as determined pursuant to such Section; provided that, in each case, if such date is not a Business Day, the Maturity Date shall be the next
preceding Business Day.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of
ERISA, to which the Company or any ERISA Affiliate makes or is obligated to
make contributions, or during the preceding five plan years, has made or been
obligated to make contributions.


 


“Note”
means a promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender to such Borrower, substantially in the form of Exhibit C.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


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


 


“Outstanding
Amount” means (a) with respect to Committed Loans on any date, the
Dollar Equivalent amount of the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of such
Committed Loans occurring on such date; (b) with respect to Swing Line
Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any borrowings and prepayments or repayments of such Swing
Line Loans occurring on such date; and (c) with respect to any L/C
Obligations on any date, the Dollar Equivalent amount of the aggregate
outstanding amount of such L/C Obligations 


 


17

















 


on such date after giving effect to any L/C Credit Extension occurring
on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements by the
Company of Unreimbursed Amounts.


 


“Overnight
Rate” means, for any day, (a) with respect to any amount denominated
in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, the L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules on
interbank compensation, and (b) with respect to any amount denominated in
an Alternative Currency, the rate of interest per annum at which overnight
deposits in the applicable Alternative Currency, in an amount approximately
equal to the amount with respect to which such rate is being determined, would
be offered for such day by a branch or Affiliate of Bank of America in the
applicable offshore interbank market for such currency to major banks in such
interbank market.


 


“Participant”
has the meaning specified in Section 10.06(d).


 


“Participating
Member State” means each state so described in any EMU Legislation.


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“PCAOB”
means the Public Company Accounting Oversight Board.


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Company or
any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.


 


 “Permitted Investments” means:


 


(a)                                  securities
issued or unconditionally guaranteed or insured by the United States government
or any agency or instrumentality thereof, in each case having maturities of not
more than one year from the date of acquisition thereof; provided that
the full faith and credit of the United States of America is pledged in support
thereof;


 


(b)                                 securities
with maturities of 18 months or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States,
by any political subdivision or taxing authority of any such state,
commonwealth or territory or by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or
foreign government (as the case may be) are rated at least A by S&P or A by
Moody’s;


 


(c)                                  commercial
paper issued by (i) a Lender or any bank holding company owning a Lender
or (ii) any Person organized under
the laws of any state of the United States of America and rated at least
Prime-1 (or the then equivalent grade) by Moody’s or at least A-1 (or the
then equivalent grade) by S&P, in each case in an aggregate
amount per issuer outstanding at any time not exceeding 15% of the investment
portfolio of the Company and its 


 


18

















 


Subsidiaries on a consolidated basis, and with
maturities of not more than 6 months from the date of acquisition thereof;


 


(d)                                 time
deposits or eurodollar time deposits with, or certificates of deposit or
bankers’ acceptances of, any commercial bank that (i) (A) is a Lender
or (B) is organized under the laws of the United States of America, any
state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United
States of America, any state thereof or the District of Columbia and (ii) has combined capital and surplus of not less
than $500,000,000, in each case with maturities of not more than 18 months from
the date of acquisition thereof;


 


(e)                                  securities with maturities of 18 months or
less from the date of acquisition backed by standby letters of credit issued by
any Lender or any commercial bank satisfying the requirements of clause (d) of
this definition;


 


(f)                                    shares of Dollar denominated money market
mutual or similar funds which invest exclusively in assets satisfying the
requirements in one or more of clauses (a), (b), (c),
(d) or (e) of this definition or money market funds
that (i) comply with the criteria set forth in SEC Rule 2a-7 under
the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa
by Moody’s or (iii) have portfolio assets of at least $1,000,000,000;


 


(g)                                 Investments
consisting of auction rate securities each having a minimum short-term rating
of SP-1 or A-1 or a minimum long-term rating of AA or equivalent by S&P or
a minimum short-term rating of MIG-1 or VMIG-1 or Prime-1 or a minimum
long-term rating of Aa or equivalent by Moody’s; and


 


(h)                                 in
the case of Investments by any Foreign Subsidiary or Investments made in a
country outside the United States of America, substantially similar Investments
to those set forth in clauses (a) through (g) of
this definition denominated in foreign currencies; provided that,
references to the United States shall be deemed to mean foreign countries
having a sovereign rating of A or better from either S&P or Moody’s.


 


“Permitted
Liens” means:


 


(a)                                  Liens
for taxes, assessments or governmental charges or claims not yet due or which
are being contested in good faith and by appropriate proceedings diligently
conducted for which appropriate reserves have been established in accordance
with GAAP;


 


(b)                                 Liens
in respect of property or assets of the Company or any of its Subsidiaries
imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens and
other similar Liens arising in the ordinary course of business in respect of
liabilities which are not overdue for a period of more than 60 days or which
are being contested in good faith and by appropriate proceedings diligently
conducted for which appropriate reserves have been established;


 


(c)                                  Liens
arising from judgments or decrees in circumstances not constituting an Event of
Default under Article 8;


 


19


















 


(d)           Liens incurred or
deposits made in connection with workers’ compensation, unemployment insurance
and other types of social security, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases (other than Indebtedness),
trade contracts and leases, government contracts, performance and
return-of-money bonds and other similar obligations incurred in the ordinary
course of business or otherwise constituting Investments permitted by Section 7.02,
other than any Lien imposed by ERISA;


 


(e)           ground leases in
respect of real property on which facilities owned or leased by the Company or
any of its Subsidiaries are located;


 


(f)            easements,
rights-of-way, restrictions, defects or irregularities in title and other
similar charges or encumbrances not interfering in any material respect with
the business of the Company and its Subsidiaries, taken as a whole;


 


(g)           any interest or title
of a lessor or secured by a lessor’s interest under any lease permitted by this
Agreement;


 


(h)           Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of good in the ordinary
course of business;


 


(i)            Liens on goods the
purchase price of which is financed by a documentary letter of credit issued
for the account of the Company or any of its Subsidiaries, provided that such
Lien secures only the obligations of the Company or such Subsidiaries in
respect of such letter of credit to the extent permitted under Section 7.03;


 


(j)            Liens arising from
precautionary Uniform Commercial Code financing statement or similar filings
made in respect of operating leases entered into by the Company or any of its
Subsidiaries;


 


(k)           Liens arising as a
matter of law and created in the ordinary course of business in favor of banks
and other financial institutions over credit balances of any bank accounts of
the Company or any of its Subsidiaries held at such banks or financial
institutions, as the case may be, to facilitate the operation of cash pooling
and/or interest set-off arrangements in respect of such bank accounts in the
ordinary course of business;


 


(l)            Liens encumbering
reasonable customary initial deposits and margin deposits and similar Liens
attaching to commodity trading accounts or other brokerage accounts incurred in
the ordinary course of business and not for speculative purposes; and


 


(m)          leases or subleases
permitted pursuant to this Agreement.


 


“Person”
means any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.


 


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Company or, with respect to any such plan that is
subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.


 


20

















 


“Platform”
has the meaning specified in Section 6.02.


 


“Register”
has the meaning specified in Section 10.06(c).


 


“Registered
Public Accounting Firm” has the meaning specified in the Securities Laws
and shall be independent of the Company as prescribed by the Securities Laws.


 


“Related
Parties” means, with respect to any Person, such Person’s Affiliates and
the partners, directors, officers, employees, agents and advisors of such
Person and of such Person’s Affiliates.


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.


 


“Request
for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with
respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with
respect to a Swing Line Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings (with the aggregate amount of
each Lender’s risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the
Total Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party.  Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be conclusively presumed
to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity
Interest of the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancellation
or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to the Company’s stockholders, partners or
members (or the equivalent Person thereof).


 


“Revaluation
Date” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of a
Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each
date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02, and (iii) such
additional dates as the Administrative Agent shall 


 


21

















 


determine or the Required Lenders shall require; and (b) with
respect to any Letter of Credit, each of the following:  (i) each date of issuance of a Letter of
Credit denominated in an Alternative Currency, (ii) each date of an
amendment of any such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) each
date of any payment by the L/C Issuer under any Letter of Credit denominated in
an Alternative Currency and (iv) such additional dates as the Administrative
Agent or the L/C Issuer shall determine or the Required Lenders shall require
(including with respect to Existing Letters of Credit).


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.


 


“Same Day
Funds” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to
disbursements and payments in an Alternative Currency, same day or other funds
as may be determined by the Administrative Agent or the L/C Issuer, as the case
may be, to be customary in the place of disbursement or payment for the
settlement of international banking transactions in the relevant Alternative
Currency.


 


“Sarbanes-Oxley”
means the Sarbanes-Oxley Act of 2002.


 


“SEC”
means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.


 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the PCAOB.


 


 “Special Notice Currency” means at any
time an Alternative Currency, other than the currency of a country that is a
member of the Organization for Economic Cooperation and Development at such
time located in North America or Europe.


 


“Spot Rate”
for a currency means the rate determined by the Administrative Agent or the L/C
Issuer, as applicable, to be the rate quoted by the Person acting in such
capacity as the spot rate for the purchase by such Person of such currency with
another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date
as of which the foreign exchange computation is made; provided  that the Administrative Agent or the L/C Issuer may obtain
such spot rate from another financial institution designated by the
Administrative Agent or the L/C Issuer if the Person acting in such capacity
does not have as of the date of determination a spot buying rate for any such
currency; and provided, further, that the L/C Issuer may use such
spot rate quoted on the date as of which the foreign exchange computation is
made in the case of any Letter of Credit denominated in an Alternative
Currency.


 


“Sterling”
and “£” mean the lawful currency of the United Kingdom.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests 


 


22

















 


having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references
herein to a “Subsidiary” shall refer to a Domestic Subsidiary or a Foreign
Subsidiary of the Company and all references to “Subsidiaries” shall refer to
Domestic Subsidiaries or Foreign Subsidiaries of the Company.


 


“Subsidiary
Guarantors” means, collectively, those Domestic Subsidiaries that are
Material Subsidiaries or that the Company elects to be a Subsidiary Guarantor
from time to time pursuant to Section 6.13(b).  The Subsidiary Guarantors as of the Closing
Date are set forth in Part (a) of Schedule 5.13.


 


“Subsidiary
Guaranty” means the Subsidiary Guaranty made by the Subsidiary Guarantors
in favor of the Administrative Agent and the Lenders, substantially in the form
of Exhibit G.


 


“Swap
Contract” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such
master agreement, together with any related schedules, a “Master Agreement”),
including any such obligations or liabilities under any Master Agreement.


 


“Swap
Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s), and (b) for any date
prior to the date referenced in clause (a), the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as determined based
upon one or more mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).


 


“Swing Line”
means the revolving credit facility made available by the Swing Line Lender
pursuant to Section 2.04.


 


“Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.


 


23

















 


“Swing Line
Lender” means Bank of America in its capacity as provider of Swing Line
Loans, or any successor swing line lender hereunder.


 


“Swing Line
Loan” has the meaning specified in Section 2.04(a).


 


“Swing Line
Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b),
which, if in writing, shall be substantially in the form of Exhibit B.


 


“Swing Line
Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b) the
Aggregate Commitments.  The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Commitments.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


“TARGET Day”
means any day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) payment system (or, if such payment system ceases to
be operative, such other payment system (if any) determined by the
Administrative Agent to be a suitable replacement) is open for the settlement
of payments in Euro.


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental
Authority, including any interest, additions to tax or penalties applicable
thereto.


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans and all
L/C Obligations.


 


“Type”
means, with respect to a Committed Loan, its character as a Base Rate Loan or a
Eurocurrency Rate Loan.


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.


 


“United
States” and “U.S.” mean the United States of America.


 


“Unreimbursed
Amount” has the meaning specified in Section 2.03(c)(i).


 


“Yen”
and “¥” mean the lawful currency of Japan.


 


1.02        Other Interpretive
Provisions.  With reference to this
Agreement and each other Loan Document, unless otherwise specified herein or in
such other Loan Document:


 


24

















 


(a)           The definitions of
terms herein shall apply equally to the singular and plural forms of the terms
defined.  Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
the Loan Document in which such references appear, (v) any reference to
any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


(b)           In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including;” the words “to” and “until”
each mean “to but excluding;” and the word “through” means “to
and including.”


 


(c)           Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.03        Accounting Terms.  (a)  Generally.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed
herein.


 


(b)           Changes in GAAP.  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Company or the Required Lenders shall so request,
the Administrative Agent, the Lenders and the Company shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio
or requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Company shall provide to the
Administrative Agent and the Lenders unaudited financial 


 


25

















 


statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.


 


1.04        Rounding.  Any financial ratios required to be
maintained by the Company pursuant to this Agreement (or required to be
satisfied in order for a specific action to be permitted under this Agreement)
shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number).


 


1.05        Exchange Rates; Currency
Equivalents.  (a)  The
Administrative Agent or the L/C Issuer, as applicable, shall determine the Spot
Rates as of each Revaluation Date to be used for calculating Dollar Equivalent
amounts of Credit Extensions and Outstanding Amounts denominated in Alternative
Currencies.  Such Spot Rates shall become
effective as of such Revaluation Date and shall be the Spot Rates employed in
converting any amounts between the applicable currencies until the next
Revaluation Date to occur.  Except for
purposes of financial statements delivered by Loan Parties hereunder or
calculating financial covenants hereunder or except as otherwise provided
herein, the applicable amount of any currency (other than Dollars) for purposes
of the Loan Documents shall be such Dollar Equivalent amount as so determined
by the Administrative Agent or the L/C Issuer, as applicable.


 


(b)           Wherever in this
Agreement in connection with a Committed Borrowing, conversion, continuation or
prepayment of a Eurocurrency Rate Loan or the issuance, amendment or extension
of a Letter of Credit, an amount, such as a required minimum or multiple
amount, is expressed in Dollars, but such Committed Borrowing, Eurocurrency
Rate Loan or Letter of Credit is denominated in an Alternative Currency, such
amount shall be the relevant Alternative Currency Equivalent of such Dollar
amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a
unit being rounded upward), as determined by the Administrative Agent or the
L/C Issuer, as the case may be.


 


1.06        Additional Alternative
Currencies.  (a)  The Company
may from time to time request that Eurocurrency Rate Loans be made and/or
Letters of Credit be issued in a currency other than those specifically listed
in the definition of “Alternative Currency”; provided that such requested
currency is a lawful currency (other than Dollars) that is readily available
and freely transferable and convertible into Dollars.  In the case of any such request with respect
to the making of Eurocurrency Rate Loans, such request shall be subject to the
approval of the Administrative Agent and the Lenders; and in the case of any
such request with respect to the issuance of Letters of Credit, such request
shall be subject to the approval of the Administrative Agent and the L/C
Issuer.


 


(b)           Any such request shall
be made to the Administrative Agent not later than 11:00 a.m., 10 Business
Days prior to the date of the desired Credit Extension (or such other time or
date as may be agreed by the Administrative Agent and, in the case of any such
request pertaining to Letters of Credit, the L/C Issuer, in its or their sole
discretion).  In the case of any such
request pertaining to Eurocurrency Rate Loans, the Administrative Agent shall
promptly notify each Lender thereof; and in the case of any such request
pertaining to 


 


26

















 


Letters of Credit, the Administrative Agent shall
promptly notify the L/C Issuer thereof. 
Each Lender (in the case of any such request pertaining to Eurocurrency
Rate Loans) or the L/C Issuer (in the case of a request pertaining to Letters
of Credit) shall notify the Administrative Agent, not later than 11:00 a.m.,
five Business Days after receipt of such request whether it consents, in its
sole discretion, to the making of Eurocurrency Rate Loans or the issuance of
Letters of Credit, as the case may be, in such requested currency.


 


(c)           Any failure by a Lender
or the L/C Issuer, as the case may be, to respond to such request within the
time period specified in the preceding sentence shall be deemed to be a refusal
by such Lender or the L/C Issuer, as the case may be, to permit Eurocurrency
Rate Loans to be made or Letters of Credit to be issued in such requested
currency.  If the Administrative Agent
and all the Lenders consent to making Eurocurrency Rate Loans in such requested
currency, the Administrative Agent shall so notify the Company and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Committed Borrowings of Eurocurrency
Rate Loans; and if the Administrative Agent and the L/C Issuer consent to the
issuance of Letters of Credit in such requested currency, the Administrative
Agent shall so notify the Company and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder for purposes of any
Letter of Credit issuances. If the Administrative Agent shall fail to obtain
consent to any request for an additional currency under this Section 1.06,
the Administrative Agent shall promptly so notify the Company. Any specified currency of an Existing Letter
of Credit that is neither Dollars nor one of the Alternative Currencies
specifically listed in the definition of “Alternative Currency” shall be deemed
an Alternative Currency with respect to such Existing Letter of Credit only.


 


1.07        Change of Currency.  (a)  Each obligation of the Borrowers to
make a payment denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation); provided that if and to the extent
that such legislation or member state provides that any such obligation may be
paid by the debtor either in Euro or such other currency, then the applicable
Borrower shall be permitted to repay such amount either in the Euro or such
other currency.  If, in relation to the
currency of any such member state, the basis of accrual of interest expressed
in this Agreement in respect of that currency shall be inconsistent with any
convention or practice in the London interbank market for the basis of accrual
of interest in respect of the Euro, such expressed basis shall be replaced by
such convention or practice with effect from the date on which such member
state adopts the Euro as its lawful currency; provided that if any
Committed Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Committed Borrowing, at the end of the then current Interest
Period.


 


(b)           Each provision of this
Agreement shall be subject to such reasonable changes of construction as the
Administrative Agent may from time to time specify to be appropriate to reflect
the adoption of the Euro by any member state of the European Union and any
relevant market conventions or practices relating to the Euro.


 


27

















 


(c)           Each provision of this
Agreement also shall be subject to such reasonable changes of construction as
the Administrative Agent may from time to time specify to be appropriate to
reflect a change in currency of any other country and any relevant market
conventions or practices relating to the change in currency.


 


1.08        Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).


 


1.09        Letter of Credit Amounts.  Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent
of the stated amount of such Letter of Credit in effect at such time; provided
that with respect to any Letter of Credit that, by its terms or the terms of
any Issuer Document related thereto, provides for one or more automatic
increases in the stated amount thereof, the amount of such Letter of Credit
shall be deemed to be the Dollar Equivalent of the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not
such maximum stated amount is in effect at such time.


 


1.10        Financial Determinations.  As of any date of determination, for purposes
of determining the Consolidated Interest Coverage Ratio or Consolidated
Leverage Ratio (and any financial calculations required to be made or included
within such ratios), or required for purposes of preparing any Compliance
Certificate to be delivered pursuant to Section 7.03(g)(iii), the
calculation of such ratios and other financial calculations shall include or
exclude, as the case may be, the effect of any assets or businesses that have
been acquired or Disposed of by the Company or any of its Subsidiaries pursuant
to the terms hereof (including through mergers or consolidations) as of such
date of determination, as determined by the Company on a pro forma basis in
accordance with GAAP, which determination may include one-time adjustments or
reductions in costs, if any, directly attributable to any such permitted
Disposition or permitted acquisition, as the case may be, in each case (x) calculated
in accordance with applicable Securities Laws for the period of four fiscal
quarters ended on or immediately prior to the date of determination of any such
ratios (without giving effect to any cost-savings or adjustments relating to
synergies resulting from any such permitted acquisition except as the
Administrative Agent shall otherwise agree) and (y) giving effect to any
such permitted acquisition or permitted Disposition, as the case may be, as if
it had occurred on the first day of such four fiscal quarter period.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Committed Loans.  Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a “Committed
Loan”) to the Borrowers in Dollars or in one or more Alternative Currencies
from time to time, on any Business Day during the Availability Period, in an
aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Commitment; provided that after giving effect to any Committed
Borrowing, (a) the Total Outstandings shall not exceed the Aggregate
Commitments and (b) the aggregate Outstanding Amount of the Committed
Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s



 


28

















 


Commitment.  Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Borrowers
may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans or
Eurocurrency Rate Loans, as further provided herein.


 


2.02        Borrowings, Conversions
and Continuations of Committed Loans.


 


(a)           Each Committed
Borrowing, each conversion of Committed Loans from one Type to the other, and
each continuation of Eurocurrency Rate Loans shall be made upon the Company’s
irrevocable notice to the Administrative Agent, which may be given by
telephone.  Each such notice must be
received by the Administrative Agent not later than 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars or of any
conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate
Committed Loans, (ii) four Business Days (or five Business Days in the
case of a Special Notice Currency) prior to the requested date of any Borrowing
or continuation of Eurocurrency Rate Loans denominated in Alternative
Currencies, and (iii) on the requested date of any Borrowing of Base Rate
Committed Loans; provided that if the Company wishes to request
Eurocurrency Rate Loans having an Interest Period other than one, two, three or
six months in duration as provided in the definition of “Interest Period”, the
applicable notice must be received by the Administrative Agent not later than 11:00 a.m.
(i) four Business Days prior to the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Loans denominated in Dollars,
or (ii) five Business Days (or six Business days in the case of a Special
Notice Currency) prior to the requested date of such Borrowing, conversion or
continuation of Eurocurrency Rate Loans denominated in Alternative Currencies,
whereupon the Administrative Agent shall give prompt notice to the Lenders of
such request and determine whether the requested Interest Period is acceptable
to all of them.  In the case of any
request for a Eurocurrency Rate Loan with an Interest Period greater than six
months duration, not later than 11:00 a.m., (i) three Business Days
before the requested date of such Borrowing, conversion or continuation of
Eurocurrency Rate Loans denominated in Dollars, or (ii) four Business Days
(or five Business days in the case of a Special Notice Currency) prior to the
requested date of such Borrowing, conversion or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies, the Administrative Agent
shall notify the Company (which notice may be by telephone) whether or not the
requested Interest Period has been consented to by all the Lenders.  Each telephonic notice by the Company
pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Company.  Each Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in Sections 2.03(c) and
2.04(c), each Committed Borrowing of or conversion to Base Rate Committed
Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof.  Each
Committed Loan Notice (whether telephonic or written) shall specify (i) whether
the Company is requesting a Committed Borrowing, a conversion of Committed
Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans,
(ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal
amount of Committed Loans to be borrowed, converted or continued, (iv) the
Type of Committed Loans 


 


29

















 


to be borrowed or to
which existing Committed Loans are to be converted, (v) if applicable, the
duration of the Interest Period with respect thereto, (vi) the currency of
the Committed Loans to be borrowed, and (vii) if applicable, the
Designated Borrower.  If the Company
fails to specify a currency in a Committed Loan Notice requesting a Borrowing,
then the Committed Loans so requested shall be made in Dollars.  If the Company fails to specify a Type of
Committed Loan in a Committed Loan Notice or if the Company fails to give a
timely notice requesting a conversion or continuation, then the applicable
Committed Loans shall be made as, or converted to, Base Rate Loans; provided
that in the case of a failure to timely request a continuation of Committed
Loans denominated in an Alternative Currency, such Loans shall be continued as
Eurocurrency Rate Loans in their original currency with an Interest Period of
one month.  Any automatic conversion to
Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurocurrency Rate Loans.  If the Company requests a Borrowing of, conversion
to, or continuation of Eurocurrency Rate Loans in any such Committed Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. 
No Committed Loan may be converted into or continued as a Committed Loan
denominated in a different currency, but instead must be prepaid in the
original currency of such Committed Loan and reborrowed in the other currency.


 


(b)           Following receipt of a
Committed Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount (and currency) of its Applicable Percentage of the
applicable Committed Loans, and if no timely notice of a conversion or
continuation is provided by the Company, the Administrative Agent shall notify
each Lender of the details of any automatic conversion to Base Rate Loans or
continuation of Committed Loans denominated in a currency other than Dollars,
in each case as described in the preceding subsection.  In the case of a Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the
Administrative Agent in Same Day Funds at the Administrative Agent’s Office for
the applicable currency not later than 1:00 p.m., in the case of any
Committed Loan denominated in Dollars, and not later than the Applicable Time
specified by the Administrative Agent in the case of any Committed Loan in an
Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice.  Each
Lender may, at its option, make any Committed Loan available to any Foreign
Obligor by causing any foreign or domestic branch or Affiliate of such Lender
to make such Loan; provided that any exercise of such option shall not
affect the obligation of such Foreign Obligor to repay such Committed Loan in
accordance with the terms of this Agreement. 
Upon satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Administrative Agent shall make all funds so received available to the
Company or the other applicable Borrower in like funds as received by the
Administrative Agent either at the option of the Company or the applicable
Borrower by (i) crediting the account of such Borrower on the books of
Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and
reasonably acceptable to) the Administrative Agent by the Company; provided
that if, on the date the Committed Loan Notice with respect to such Borrowing
denominated in Dollars is given by the Company, there are L/C Borrowings
outstanding, then the proceeds of such Borrowing, first, shall be
applied to the payment in full of any such L/C Borrowings, and, second,
shall be made available to the applicable Borrower as provided above.


 


30

















 


(c)           Except as otherwise
provided herein, a Eurocurrency Rate Loan may be continued or converted only on
the last day of an Interest Period for such Eurocurrency Rate Loan. Upon the
occurrence and during the continuance of an Event of Default, no Loans may be
requested as, converted to or continued as Eurocurrency Rate Loans (whether in
Dollars or any Alternative Currency) without the consent of the Required Lenders,
and the Required Lenders may demand that any or all of the then outstanding
Eurocurrency Rate Loans denominated in an Alternative Currency be prepaid, or
redenominated into Dollars in the amount of the Dollar Equivalent thereof, on
the last day of the then current Interest Period with respect thereto.


 


(d)           The Administrative
Agent shall promptly notify the Company and the Lenders of the interest rate
applicable to any Interest Period for Eurocurrency Rate Loans upon
determination of such interest rate.  At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Company and the Lenders of any change in Bank of America’s prime
rate used in determining the Base Rate promptly following the public
announcement of such change.


 


(e)           After giving effect to
all Committed Borrowings, all conversions of Committed Loans from one Type to
the other, and all continuations of Committed Loans as the same Type, there
shall not be more than ten Interest Periods in effect with respect to Committed
Loans.


 


2.03        Letters of Credit.


 


(a)           The Letter of Credit
Commitment.


 


(i)            Subject to the terms
and conditions set forth herein, (A) the L/C Issuer agrees, in reliance
upon the agreements of the Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit denominated in
Dollars or in one or more Alternative Currencies for the account of the Company
or its Subsidiaries, and to amend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor
drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Company or
its Subsidiaries and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the
Total Outstandings shall not exceed the Aggregate Commitments, (y) the
aggregate Outstanding Amount of the Committed Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit.  Each request by the Company
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Company that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Company’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Company may,
during the foregoing period, obtain Letters 


 


31

















 


of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall be
deemed to have been issued pursuant hereto, and from and after the Closing Date
shall be subject to and governed by the terms and conditions hereof.


 


(ii)           The L/C Issuer shall
not issue any Letter of Credit, if:


 


(A)          the expiry date of such
requested Letter of Credit would occur more than twelve months after the date
of issuance, unless the Required Lenders have approved such expiry date; or


 


(B)           the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date.


 


(iii)          The L/C Issuer shall not
be under any obligation to issue any Letter of Credit if:


 


(A)          any order, judgment or
decree of any Governmental Authority or arbitrator shall by its terms purport
to enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over
the L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, the
issuance of letters of credit generally or such Letter of Credit in particular
or shall impose upon the L/C Issuer with respect to such Letter of Credit any
material restriction, reserve or capital requirement (for which the L/C Issuer
is not otherwise compensated hereunder) not in effect on the Closing Date, or
shall impose upon the L/C Issuer any unreimbursed loss, cost or expense which
was not applicable on the Closing Date and which the L/C Issuer in good faith
deems material to it;


 


(B)           the issuance of such
Letter of Credit would violate one or more policies of the L/C Issuer
applicable to letters of credit generally;


 


(C)           except as otherwise
agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is
in an initial stated amount less than $100,000;


 


(D)          except as otherwise
agreed by the Administrative Agent and the L/C Issuer, such Letter of Credit is
to be denominated in a currency other than Dollars or an Alternative Currency;


 


(E)           the L/C Issuer does not
as of the issuance date of such requested Letter of Credit issue Letters of
Credit in the requested currency other than Dollars and Alternative Currencies
designated as of the Closing Date; or


 


(F)           a default of any Lender’s
obligations to fund under Section 2.03(c) exists or any Lender
is at such time a Defaulting Lender hereunder, unless the L/C 


 


32

















 


Issuer has entered into satisfactory arrangements with
the Company or such Lender to eliminate the L/C Issuer’s risk with respect to
such Lender.


 


(iv)          The L/C Issuer shall not
amend any Letter of Credit without the written consent of the applicable
Borrower and if the L/C Issuer would not be permitted at such time to issue
such Letter of Credit in its amended form under the terms hereof.


 


(v)           The L/C Issuer shall be
under no obligation to amend any Letter of Credit if (A) the L/C Issuer
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter
of Credit does not accept the proposed amendment to such Letter of Credit.


 


(vi)          The L/C Issuer shall act
on behalf of the Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article IX
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.


 


(b)           Procedures for
Issuance and Amendment of Letters of Credit.


 


(i)            Each Letter of Credit
shall be issued or amended, as the case may be, upon the request of the Company
delivered to the L/C Issuer (with a copy to the Administrative Agent) in the
form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the Company.  Such
Letter of Credit Application must be received by the L/C Issuer and the Administrative
Agent not later than 11:00 a.m. at least two Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. 
In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail reasonably
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount and
currency thereof; (C) the expiry date thereof; (D) the name and
address of the beneficiary thereof; (E) the documents to be presented by
such beneficiary in case of any drawing thereunder; (F) the full text of
any certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the L/C Issuer may reasonably
require.  In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may
reasonably require.  Additionally, the
Company shall furnish to the L/C Issuer and the Administrative Agent such
other documents and information pertaining to such requested Letter of Credit
issuance or amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may reasonably require.


 


33

















 


(ii)           Promptly after receipt
of any Letter of Credit Application, the L/C Issuer will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Application from the Company and,
if not, the L/C Issuer will promptly provide the Administrative Agent with a
copy thereof.  Unless the L/C Issuer has
received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article IV shall not then be satisfied,
then, subject to the terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the Company (or the
applicable Subsidiary) or enter into the applicable amendment, as the case may
be, in each case in accordance with the L/C Issuer’s usual and customary
business practices.  Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Lender’s Applicable Percentage times the amount of such Letter of
Credit.


 


(iii)          Promptly after its
delivery of any Letter of Credit or any amendment to a Letter of Credit to an
advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Company and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.


 


(c)           Drawings and
Reimbursements; Funding of Participations.


 


(i)            Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such
Letter of Credit, the L/C Issuer shall notify the Company and the
Administrative Agent thereof.  In the
case of a Letter of Credit denominated in an Alternative Currency, the Company
shall reimburse the L/C Issuer in such Alternative Currency, unless the Company
shall have notified the L/C Issuer promptly following receipt of the notice of
drawing that the Company will reimburse the L/C Issuer in Dollars.  In the case of any such reimbursement in
Dollars of a drawing under a Letter of Credit denominated in an Alternative Currency,
the L/C Issuer shall notify the Company of the Dollar Equivalent of the amount
of the drawing promptly following the determination thereof.  Not later than 11:00 a.m. on the date of
any payment by the L/C Issuer under a Letter of Credit to be reimbursed in
Dollars, or the Applicable Time on the date of any payment by the L/C Issuer
under a Letter of Credit to be reimbursed in an Alternative Currency (each such
date, an “Honor Date”), the Company shall reimburse the L/C Issuer
through the Administrative Agent in an amount equal to the amount of such
drawing and in the applicable currency. 
If the Company fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the amount of the
Dollar Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency) (the “Unreimbursed Amount”), and the amount of
such Lender’s Applicable Percentage thereof. 
In such event, the Company shall be deemed to have requested a Committed
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.02 for the principal amount of Base Rate
Loans, but 


 


34

















 


subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Committed Loan Notice).  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)           Each Lender shall upon
any notice pursuant to Section 2.03(c)(i) make funds available
to the Administrative Agent for the account of the L/C Issuer, in Dollars, at
the Administrative Agent’s Office for Dollar-denominated payments in an amount
equal to its Applicable Percentage of the Unreimbursed Amount not later than
1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent, whereupon, subject to the provisions of Section 2.03(c)(iii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Committed Loan to the Company in such amount.  The Administrative Agent shall remit the
funds so received to the L/C Issuer in Dollars.


 


(iii)          With respect to any
Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of
Base Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Company shall be deemed to
have incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default
Rate.  In such event, each Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this Section 2.03.


 


(iv)          Until each Lender funds
its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.


 


(v)           Each Lender’s
obligation to make Committed Loans or L/C Advances to reimburse the L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense
or other right which such Lender may have against the L/C Issuer, the Company,
any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence
or continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided that
each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Company of a Committed Loan Notice).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Company to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.


 


35

















 


(vi)          If any Lender fails to
make available to the Administrative Agent for the account of the L/C Issuer
any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer shall be entitled to recover from such Lender (acting through
the Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the L/C Issuer at a rate per annum equal to the
applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by the L/C Issuer in connection
with the foregoing.  If such Lender pays
such amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Committed Loan included in the relevant Committed
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case
may be.  A certificate of the L/C Issuer
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (vi) shall be conclusive absent
manifest error.


 


(d)           Repayment of
Participations.


 


(i)            At any time after the
L/C Issuer has made a payment under any Letter of Credit and has received from
any Lender such Lender’s L/C Advance in respect of such payment in accordance
with Section 2.03(c), if the Administrative Agent receives for the
account of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Company or otherwise,
including proceeds of cash collateral applied thereto by the Administrative
Agent), the Administrative Agent will distribute to such Lender its Applicable
Percentage thereof in Dollars and in the same funds as those received by the
Administrative Agent.


 


(ii)           If any payment received
by the Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) is
required to be returned under any of the circumstances described in Section 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
applicable Overnight Rate from time to time in effect.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)           Obligations Absolute.  The obligation of
the Company to reimburse the L/C Issuer for each drawing under each Letter of
Credit and to repay each L/C Borrowing shall be absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:


 


(i)            any lack of validity
or enforceability of such Letter of Credit, this Agreement, or any other Loan
Document;


 


(ii)           the existence of any
claim, counterclaim, setoff, defense or other right that the Company or any
Subsidiary may have at any time against any beneficiary or any 


 


36

















 


transferee of such Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the L/C Issuer
or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;


 


(iii)          any draft, demand,
certificate or other document presented under such Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing
under such Letter of Credit;


 


(iv)          any payment by the L/C
Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of
Credit; or any payment made by the L/C Issuer under such Letter of Credit to
any Person purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other representative
of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor Relief
Law;


 


(v)           any adverse change in
the relevant exchange rates or in the availability of the relevant Alternative
Currency to the Company or any Subsidiary or in the relevant currency markets
generally; or


 


(vi)          any other circumstance
or happening whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or any Subsidiary.


 


The Company
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with the Company’s instructions or other irregularity, the Company will
immediately notify the L/C Issuer.  The
Company shall be conclusively deemed to have waived any such claim against the
L/C Issuer and its correspondents unless such notice is given as aforesaid.


 


(f)            Role of L/C Issuer.  Each Lender and the
Company agree that, in paying any drawing under a Letter of Credit, the L/C
Issuer shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such
document.  None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable to any
Lender for (i) any action taken or omitted in connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit or Issuer Document. 
The Company hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided
that this assumption is not intended to, and shall not, preclude the Company’s
pursuing such rights and remedies as it 


 


37

















 


may have against the beneficiary or transferee at law
or under any other agreement.  None of
the L/C Issuer, the Administrative Agent, any of their respective Related Parties
nor any correspondent, participant or assignee of the L/C Issuer shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of Section 2.03(e); provided that anything in such
clauses to the contrary notwithstanding, the Company may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Company, to the extent,
but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Company which the Company proves were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s
willful failure to pay under any Letter of Credit after the presentation to it
by the beneficiary of a sight draft and certificate(s) strictly complying
with the terms and conditions of a Letter of Credit.   In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral.  (i)  Upon the request of the
Administrative Agent, (A) if the L/C Issuer has honored any full or
partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit
Expiration Date, any L/C Obligation for any reason remains outstanding, the
Company shall, in each case, immediately Cash Collateralize the then
Outstanding Amount of all L/C Obligations.


 


(ii)           In addition, if the
Administrative Agent notifies the Company at any time that the Outstanding
Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then, within
two Business Days after receipt of such notice, the Company shall Cash
Collateralize the L/C Obligations in an amount equal to the amount by which the
Outstanding Amount of all L/C Obligations exceeds the Letter of Credit
Sublimit.


 


(iii)          The Administrative Agent
may, at any time and from time to time after the initial deposit of Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations.


 


(iv)          Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash
Collateral hereunder.  For purposes of
this Section 2.03, Section 2.05  and
Section 8.02(c), “Cash Collateralize” means to pledge and
deposit with or deliver to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, as collateral for the L/C Obligations, cash or deposit
account balances pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuer (which documents
are hereby consented to by the Lenders). 
Derivatives of such term have corresponding meanings.  The Company hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  Cash
Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.


 


38

















 


(h)           Applicability of ISP.  Unless otherwise
expressly agreed by the L/C Issuer and the Company when a Letter of Credit is
issued (including any such agreement applicable to an Existing Letter of
Credit), the rules of the ISP shall apply to each Letter of Credit.


 


(i)            Letter of Credit
Fees.  The Company shall pay to the
Administrative Agent for the account of each Lender in accordance with its
Applicable Percentage, in Dollars, a Letter of Credit fee (the “Letter of
Credit Fee”)  for each Letter of Credit equal
to the Applicable Rate times the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.09.  Letter of Credit Fees shall be (i) due
and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand and (ii) computed on a quarterly basis in arrears.  If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of
Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.


 


(j)            Fronting Fee and
Documentary and Processing Charges Payable to L/C Issuer.  The Company shall
pay directly to the L/C Issuer for its own account, in Dollars, a fronting fee
with respect to each Letter of Credit, at the rate per annum specified in the
Fee Letter, computed on the Dollar Equivalent of the daily amount available to
be drawn under such Letter of Credit on a quarterly basis in arrears.  Such fronting fee shall be due and payable on
the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on
demand.  For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section 1.09.  In addition, the Company shall pay directly
to the L/C Issuer for its own account, in Dollars, the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time
in effect.  Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.


 


(k)           Conflict with Issuer
Documents.  In the event of any
conflict between the terms hereof and the terms of any Issuer Document, the
terms hereof shall control.


 


(l)            Letters of Credit
Issued for Subsidiaries. 
Notwithstanding that a Letter of Credit issued or outstanding hereunder
is in support of any obligations of, or is for the account of, a Subsidiary,
the Company shall be obligated to reimburse the L/C Issuer hereunder for any
and all drawings under such Letter of Credit. 
The Company hereby acknowledges that the issuance of Letters of Credit
for the account of Subsidiaries inures to the benefit of the Company, and that
the Company’s business derives substantial benefits from the businesses of such
Subsidiaries.


 


39

















 


2.04        Swing Line Loans.


 


(a)           The Swing Line.  Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the
other Lenders set forth in this Section 2.04, to make loans in
Dollars (each such loan, a “Swing Line Loan”) to the Company from time
to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of the Swing Line
Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated
with the Applicable Percentage of the Outstanding Amount of Committed Loans and
L/C Obligations of the Lender acting as Swing Line Lender, may exceed the
amount of such Lender’s Commitment; provided that after giving effect to
any Swing Line Loan, (i) the Total Outstandings shall not exceed the
Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the
Committed Loans of any Lender, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender’s Commitment, and provided, further, that
the Company shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan.  Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Company may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such
Swing Line Loan in an amount equal to the product of such Lender’s Applicable
Percentage times the amount of such Swing Line Loan.


 


(b)           Borrowing Procedures.  Each Swing Line Borrowing shall be made upon
the Company’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum of $1,000,000, and (ii) the
requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. 
Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents
thereof.  Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that
one or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Company at its office by either, at the option of the Company,
by crediting the account of the Company on the books of the Swing Line Lender
in Same Day 


 


40

















 


Funds or by wire transfer of such funds in accordance
with instructions provided by the Company.


 


(c)           Refinancing of Swing
Line Loans.


 


(i)            The Swing Line Lender
at any time in its sole and absolute discretion may request, on behalf of the
Company (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lender’s Applicable Percentage of the amount of Swing Line
Loans then outstanding.  Such request
shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and
multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Aggregate Commitments and the
conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Company with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the
Swing Line Lender at the Administrative Agent’s Office for Dollar denominated
payments not later than 1:00 p.m. on the day specified in such Committed
Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender
that so makes funds available shall be deemed to have made a Base Rate
Committed Loan to the Company in such amount. 
The Administrative Agent shall remit the funds so received to the Swing
Line Lender.


 


(ii)           If for any reason any
Swing Line Loan cannot be refinanced by such a Committed Borrowing in
accordance with Section 2.04(c)(i), the request for Base Rate
Committed Loans submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Lenders fund
its risk participation in the relevant Swing Line Loan and each Lender’s
payment to the Administrative Agent for the account of the Swing Line Lender
pursuant to Section 2.04(c)(i) shall be deemed payment in
respect of such participation.


 


(iii)          If any Lender fails to
make available to the Administrative Agent for the account of the Swing Line
Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the applicable Overnight Rate from time to time in effect, plus any
administrative, processing or similar fees customarily charged by the Swing
Line Lender in connection with the foregoing. 
If such Lender pays such amount (with interest and fees as aforesaid),
the amount so paid shall constitute such Lender’s Committed Loan included in
the relevant Committed Borrowing or funded participation in the relevant Swing
Line Loan, as the case may be.  A
certificate of the Swing Line Lender submitted to any Lender (through 


 


41

















 


the Administrative Agent) with respect to any amounts
owing under this clause (iii) shall be conclusive absent manifest error.


 


(iv)          Each Lender’s obligation
to make Committed Loans or to purchase and fund risk participations in Swing
Line Loans pursuant to this Section 2.04(c) shall be absolute
and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Company or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided that each Lender’s obligation to make Committed
Loans pursuant to this Section 2.04(c) is subject to the
conditions set forth in Section 4.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Company to repay Swing Line
Loans, together with interest as provided herein.


 


(d)           Repayment of
Participations.


 


(i)            At any time after any
Lender has purchased and funded a risk participation in a Swing Line Loan, if
the Swing Line Lender receives any payment on account of such Swing Line Loan,
the Swing Line Lender will distribute to such Lender its Applicable Percentage
thereof in the same funds as those received by the Swing Line Lender.


 


(ii)           If any payment received
by the Swing Line Lender in respect of principal or interest on any Swing Line
Loan is required to be returned by the Swing Line Lender under any of the
circumstances described in Section 10.05 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each
Lender shall pay to the Swing Line Lender its Applicable Percentage thereof on
demand of the Administrative Agent, plus interest thereon from the date of such
demand to the date such amount is returned, at a rate per annum equal to the
applicable Overnight Rate.  The
Administrative Agent will make such demand upon the request of the Swing Line
Lender.  The obligations of the Lenders
under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


(e)           Interest for Account
of Swing Line Lender.  The Swing Line
Lender shall be responsible for invoicing the Company for interest on the Swing
Line Loans.  Until each Lender funds its
Base Rate Committed Loan or risk participation pursuant to this Section 2.04
to refinance such Lender’s Applicable Percentage of any Swing Line Loan,
interest in respect of such Applicable Percentage shall be solely for the
account of the Swing Line Lender.


 


(f)            Payments Directly
to Swing Line Lender.  The Company
shall make all payments of principal and interest in respect of the Swing Line
Loans directly to the Swing Line Lender.


 


2.05        Prepayments.


 


(a)           Each Borrower may, upon
notice from the Company to the Administrative Agent, at any time or from time
to time voluntarily prepay Committed Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the 


 


42

















 


Administrative Agent not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Dollars, (B) four Business Days (or five, in the case of
prepayment of Loans denominated in Special Notice Currencies) prior to any date
of prepayment of Eurocurrency Rate Loans denominated in Alternative Currencies,
and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any
prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof; (iii) any prepayment of Eurocurrency Rate Loans denominated in
Alternative Currencies shall be in a minimum principal amount of $1,000,000 or
a whole multiple of $500,000 in excess thereof; and (iv) any prepayment of
Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof or, in each case, if less, the entire
principal amount thereof then outstanding. 
Each such notice shall specify the date and amount of such prepayment
and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate
Loans are to be prepaid, the Interest Period(s) of such Loans.  The Administrative Agent will promptly notify
each Lender of its receipt of each such notice, and of the amount of such
Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Company, the
applicable Borrower shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loan
shall be accompanied by all accrued interest on the amount prepaid, together
with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(b)           The Company may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; provided that (i) such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000.  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein.


 


(c)           If the Administrative
Agent notifies the Company at any time that the Total Outstandings at such time
exceed an amount equal to 105%
of the Aggregate Commitments then in effect, then, within two Business Days
after receipt of such notice, the Borrowers shall prepay Loans and/or the
Company shall Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment to an
amount not to exceed 100% of the Aggregate Commitments then in effect; provided
that, subject to the provisions of Section 2.03(g)(ii), the Company
shall not be required to Cash Collateralize the L/C Obligations pursuant to
this Section 2.05(c) unless after the prepayment in full of
the Loans the Total Outstandings exceed the Aggregate Commitments then in
effect.  The Administrative Agent may, at
any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of further exchange rate fluctuations.


 


2.06        Termination or Reduction
of Commitments.  The Company may,
upon notice to the Administrative Agent, terminate the Aggregate Commitments,
or from time to time 


 


43

















 


permanently reduce the
Aggregate Commitments; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction, (ii) any such
partial reduction shall be in an aggregate amount of $10,000,000 or any whole
multiple of $1,000,000 in excess thereof, (iii) the Company shall not
terminate or reduce the Aggregate Commitments if, after giving effect thereto
and to any concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit or the
Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess.  The Administrative Agent will promptly notify
the Lenders of any such notice of termination or reduction of the Aggregate
Commitments.  The amount of any such
Aggregate Commitment reduction shall not be applied to the Letter of Credit
Sublimit unless otherwise specified by the Company.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable
Percentage.  All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination.


 


2.07        Repayment of Loans.


 


(a)           Each Borrower shall
repay to the Lenders on the Maturity Date the aggregate principal amount of
Committed Loans made to such Borrower outstanding on such date.


 


(b)           The Company shall repay
each Swing Line Loan on the earlier to occur of (i) the date ten Business
Days after such Loan is made and (ii) the Maturity Date.


 


2.08        Interest.


 


(a)           Subject to the
provisions of subsection (b) below, (i) each Eurocurrency Rate
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Rate plus (in the case of a
Eurocurrency Rate Loan of any Lender which is lent from a Lending Office in the
United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each
Base Rate Committed Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate; and (iii) each Swing Line
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate.


 


(b)           (i)       If any amount of principal of any Loan is not
paid when due (after taking into account any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.


 


(ii)           If any amount (other
than principal of any Loan) payable by any Borrower under any Loan Document is
not paid when due (after taking into account any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then upon the request
of the Required Lenders, such amount shall thereafter bear interest at a 


 


44

















 


fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Laws.


 


(iii)          Upon the request of the Required Lenders, upon the occurrence and
during the continuance of an Event of Default, the Borrowers shall pay interest
on the principal amount of all outstanding Obligations hereunder at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws.


 


(iv)          Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.


 


(c)           Interest on each Loan
shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and before and
after the commencement of any proceeding under any Debtor Relief Law.


 


2.09        Fees.  In addition to certain fees described in subsections
(i) and (j) of Section 2.03:


 


(a)           Commitment Fee.  The Company shall
pay to the Administrative Agent for the account of each Lender in accordance
with its Applicable Percentage, a commitment fee in Dollars equal to the
Applicable Rate times the actual daily amount by which the Aggregate
Commitments exceed the sum of (i) the Outstanding Amount of Committed
Loans and (ii) the Outstanding Amount of L/C Obligations.  The commitment fee shall accrue at all times
during the Availability Period, including at any time during which one or more of
the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the last day of the Availability Period. 
The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.


 


(b)           Utilization Fee.  The Company shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage, a utilization fee in Dollars equal to the Applicable Rate times
the Total Outstandings on each day that the Total Outstandings exceed 50% of
the actual daily amount of the Aggregate Commitments then in effect (or, if
terminated, in effect immediately prior to such termination).  The utilization fee shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the last day of the Availability Period (and, if applicable, thereafter
on demand).  The utilization fee shall be
calculated quarterly in arrears.  The
utilization fee shall accrue at all times, including at any time during which
one or more of the conditions in Article IV is not met.


 


45


















 


(c)           Other Fees.  The Company shall
pay to the Arranger and the Administrative Agent for their own respective
accounts, in Dollars, fees in the amounts and at the times specified in the Fee
Letter.  Such fees shall be fully earned
when paid and shall not be refundable for any reason whatsoever.


 


2.10        Computation of Interest
and Fees.  All computations of
interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” shall be made on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed. 
All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis of a 365-day
year) or, in the case of interest in respect of Committed Loans denominated in
Alternative Currencies as to which market practice differs from the foregoing,
in accordance with such market practice. 
Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid; provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section 2.12(a),
bear interest for one day.  Each
determination by the Administrative Agent of an interest rate or fee hereunder
shall be conclusive and binding for all purposes, absent manifest error.


 


2.11        Evidence of Debt.  (a)  The Credit Extensions made by each
Lender shall be evidenced by one or more accounts or records maintained by such
Lender and by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by the
Administrative Agent and each Lender shall be conclusive absent manifest error
of the amount of the Credit Extensions made by the Lenders to the Borrowers and
the interest and payments thereon.  Any
failure to so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrowers hereunder to pay any amount
owing with respect to the Obligations. 
In the event of any conflict between the accounts and records maintained
by any Lender and the accounts and records of the Administrative Agent in respect
of such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. 
Upon the request of any Lender to a Borrower made through the
Administrative Agent, such Borrower shall execute and deliver to such Lender
(through the Administrative Agent) a Note, which shall evidence such Lender’s
Loans to such Borrower in addition to such accounts or records.  Each Lender may attach schedules to a Note
and endorse thereon the date, Type (if applicable), amount, currency and
maturity of its Loans and payments with respect thereto.


 


(b)           In addition to the
accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error.


 


2.12        Payments Generally;
Administrative Agent’s Clawback.  (a) 
General.  All payments to be made
by the Borrowers shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. 
Except as otherwise expressly provided herein and except with respect to
principal of and interest on Loans denominated in an Alternative 


 


46

















 


Currency, all payments by
the Borrowers hereunder shall be made to the Administrative Agent, for the
account of the respective Lenders to which such payment is owed, at the
applicable Administrative Agent’s Office in Dollars and in Same Day Funds not
later than 2:00 p.m. on the date specified herein.  Except as otherwise expressly provided
herein, all payments by the Borrowers hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. Without
limiting the generality of the foregoing, the Administrative Agent may require
that any payments due under this Agreement be made in the United States.  If, for any reason, any Borrower is prohibited
by any Law from making any required payment hereunder in an Alternative
Currency, such Borrower shall make such payment in Dollars in the Dollar
Equivalent of the Alternative Currency payment amount.  The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender’s Lending Office.  All
payments received by the Administrative Agent (i) after 2:00 p.m., in
the case of payments in Dollars, or (ii) after the Applicable Time
specified by the Administrative Agent in the case of payments in an Alternative
Currency, shall in each case be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.  If any payment to be made by any Borrower
shall come due on a day other than a Business Day, payment shall be made on the
next following Business Day, and such extension of time shall be reflected in
computing interest or fees, as the case may be.


 


(b)           (i)       Funding by Lenders; Presumption by
Administrative Agent.  Unless the
Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Committed Borrowing of Eurocurrency Rate Loans (or, in the
case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the
date of such Committed Borrowing) that such Lender will not make available to
the Administrative Agent such Lender’s share of such Committed Borrowing, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with Section 2.02 (or, in the case of a
Committed Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the applicable
Borrower a corresponding amount.  In such
event, if a Lender has not in fact made its share of the applicable Committed
Borrowing available to the Administrative Agent, then the applicable Lender and
the applicable Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount in Same Day Funds with interest
thereon, for each day from and including the date such amount is made available
to such Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the
Overnight Rate, plus any administrative, processing or similar fees customarily
charged by the Administrative Agent in connection with the foregoing, and (B) in
the case of a payment to be made by such Borrower, the interest rate applicable
to the Committed Borrowing.  If such
Borrower and such Lender shall pay such interest to the Administrative Agent
for the same or an overlapping period, the Administrative Agent shall promptly
remit to such Borrower the amount of such interest paid by such Borrower for
such period.  If such Lender pays its
share of the applicable Committed Borrowing to the Administrative Agent, 


 


47

















 


then the amount so paid shall constitute such Lender’s
Committed Loan included in such Committed Borrowing.  Any payment by such Borrower shall be without
prejudice to any claim such Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


(ii)           Payments by
Borrowers; Presumptions by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Borrower prior to the date on which any payment is due
to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that such Borrower will not make such payment, the Administrative
Agent may assume that such Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if such Borrower has not in
fact made such payment, then each of the Lenders or the L/C Issuer, as the case
may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or the L/C Issuer, in Same Day
Funds with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Overnight Rate. 
Any such payment by any Lender or the L/C Issuer shall be without
prejudice to any claim it may have against any Borrower for failure to make
such payment.


 


A notice of
the Administrative Agent to any Lender or Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent
manifest error.


 


(c)           Failure to Satisfy
Conditions Precedent.  If any Lender
makes available to the Administrative Agent funds for any Loan to be made by
such Lender to any Borrower as provided in the foregoing provisions of this Article II,
and such funds are not made available to such Borrower by the Administrative
Agent because the conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall promptly return such funds (in like funds as
received from such Lender) to such Lender, without interest.


 


(d)           Obligations of
Lenders Several.  The obligations of
the Lenders hereunder to make Committed Loans, to fund participations in
Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are
several and not joint.  The failure of
any Lender to make any Committed Loan, to fund any such participation or to
make any payment under Section 10.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Committed Loan, to purchase its participation or to
make its payment under Section 10.04(c).


 


(e)           Funding Source.  Nothing herein shall be deemed to obligate
any Lender to obtain the funds for any Loan in any particular place or manner
or to constitute a representation by any Lender that it has obtained or will
obtain the funds for any Loan in any particular place or manner.


 


2.13        Sharing of Payments by
Lenders.  If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest 


 


48

















 


on any of the Committed
Loans made by it, or the participations in L/C Obligations or in Swing Line
Loans held by it resulting in such Lender’s receiving payment of a proportion
of the aggregate amount of such Committed Loans or participations and accrued
interest thereon greater than its pro  rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (a) notify
the Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Committed Loans and subparticipations in L/C
Obligations and Swing Line Loans of the other Lenders, or make such other adjustments
as shall be equitable, so that the benefit of all such payments shall be shared
by the Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Committed Loans and other amounts
owing them; provided that:


 


(i)            if any such
participations or subparticipations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest; and


 


(ii)           the provisions of this Section shall
not be construed to apply to (x) any payment made by a Borrower pursuant
to and in accordance with the express terms of this Agreement or (y) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than to
the Company or any Subsidiary thereof (as to which the provisions of this Section shall
apply).


 


Each Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of such Borrower in the amount of such participation.


 


2.14        Designated Borrowers.  (a)  The Company may at any time, upon
not less than 15 Business Days’ notice from the Company to the Administrative
Agent (or such shorter period as may be agreed by the Administrative Agent in
its sole discretion), designate any additional wholly-owned Foreign Subsidiary
or Domestic Subsidiary of the Company (an “Applicant Borrower”) as a
Designated Borrower to receive Loans hereunder by delivering to the
Administrative Agent (which shall promptly deliver counterparts thereof to each
Lender) a duly executed notice and agreement in substantially the form of Exhibit H
(a “Designated Borrower Request and Assumption Agreement”).  The parties hereto acknowledge and agree that
prior to any Applicant Borrower becoming entitled to utilize the credit
facilities provided for herein the Administrative Agent and the Lenders shall
have received such supporting resolutions, incumbency certificates, opinions of
counsel and other documents or information, in form, content and scope
reasonably satisfactory to the Administrative Agent, as may be reasonably
required by the Administrative Agent or the Required Lenders in their sole
discretion, and Notes signed by such new Borrowers to the extent any Lenders so
require.  Promptly following receipt of
all such requested resolutions, incumbency certificates, opinions of counsel
and other documents or information (and the consent of the Administrative Agent
and the Required Lenders if the Applicant Borrower is not a Subsidiary
Guarantor), the Administrative Agent shall 


 


49

















 


send a notice in
substantially the form of Exhibit I (a “Designated Borrower
Notice”) to the Company and the Lenders specifying the effective date
upon which the Applicant Borrower shall constitute a Designated Borrower for
purposes hereof, whereupon each of the Lenders agrees to permit such Designated
Borrower to receive Loans hereunder, on the terms and conditions set forth
herein, and each of the parties agrees that such Designated Borrower otherwise
shall be a Borrower for all purposes of this Agreement; provided that no
Committed Loan Notice or Letter of Credit Application may be submitted by or on
behalf of such Designated Borrower until the date five Business Days after such
effective date.


 


(b)           The Obligations of the
Company and each Designated Borrower that is a Domestic Subsidiary shall be
joint and several in nature.  The
Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be
several in nature.


 


(c)           Each Subsidiary of the
Company that is or becomes a “Designated Borrower” pursuant to this Section 2.14
hereby irrevocably appoints the Company as its agent for all purposes relevant
to this Agreement and each of the other Loan Documents, including (i) the
giving and receipt of notices, (ii) the execution and delivery of all
documents, instruments and certificates contemplated herein and all
modifications hereto, and (iii) the receipt of the proceeds of any Loans
made by the Lenders, to any such Designated Borrower hereunder.  Any acknowledgment, consent, direction,
certification or other action which might otherwise be valid or effective only
if given or taken by all Borrowers, or by each Borrower acting singly, shall be
valid and effective if given or taken only by the Company, whether or not any
such other Borrower joins therein.  Any
notice, demand, consent, acknowledgement, direction, certification or other
communication delivered to the Company in accordance with the terms of this
Agreement shall be deemed to have been delivered to each Designated Borrower.


 


(d)           The Company may from
time to time, upon not less than 15 Business Days’ notice from the Company to
the Administrative Agent (or such shorter period as may be agreed by the
Administrative Agent in its sole discretion), terminate a Designated Borrower’s
status as such; provided that there are no outstanding Loans payable by
such Designated Borrower, or other amounts payable by such Designated Borrower
on account of any Loans made to it, as of the effective date of such
termination. The Administrative Agent will promptly notify the Lenders of any
such termination of a Designated Borrower’s status.


 


2.15        Extension of Maturity Date.


 


(a)           Requests for
Extension.  The Company may, by
notice to the Administrative Agent (who shall promptly, and in any event within
5 Business Days, notify the Lenders) not earlier than 60 days and not later
than 30 days prior to each of the first two anniversaries of the Closing Date,
request that each Lender extend such Lender’s Maturity Date for an additional
one year from the Maturity Date then in effect (the “Existing Maturity Date”).


 


(b)           Lender Elections to
Extend.  Each Lender, acting in its
sole and individual discretion, shall, by notice to the Administrative Agent
given not later than 20 days following the date on which the Administrative
Agent notifies such Lender of the Company’s request for an extension (the “Lender
Notice Date”), advise the Administrative Agent whether or not such Lender
agrees to such extension (and each Lender that determines not to so extend its
Maturity 


 


50

















 


Date (a “Non-Extending Lender”) shall notify
the Administrative Agent of such fact promptly after such determination (but in
any event no later than the Lender Notice Date)) and any Lender that does not
so advise the Administrative Agent on or before the Lender Notice Date shall be
deemed to be a Non-Extending Lender.  The
election of any Lender to agree to such extension shall not obligate any other
Lender to so agree.


 


(c)           Notification by
Administrative Agent.  The
Administrative Agent shall notify the Company of each Lender’s determination
under this Section no later than the date 5 Business Days after the Lender
Notice Date (or, if such date is not a Business Day, on the next preceding
Business Day).


 


(d)           Additional
Commitment Lenders.  The Company
shall have the right on or before the Existing Maturity Date to replace each
Non-Extending Lender with, and add as “Lenders” under this Agreement in place
thereof, one or more Eligible Assignees (each, an “Additional Commitment
Lender”) as provided in Section 10.13, each of which Additional
Commitment Lenders shall have entered into an Assignment and Assumption
pursuant to which such Additional Commitment Lender shall, effective as of the
Existing Maturity Date, undertake a Commitment (and, if any such Additional
Commitment Lender is already a Lender, its Commitment shall be in addition to
such Lender’s Commitment hereunder on such date).


 


(e)           Minimum Extension
Requirement.  If (and only if) the
total of the Commitments of the Lenders that have agreed so to extend their
Maturity Date and the additional Commitments of the Additional Commitment
Lenders shall be more than 50% of the aggregate amount of the Commitments in
effect immediately prior to the Existing Maturity Date, then the Maturity Date
of each Extending Lender and of each Additional Commitment Lender shall be
extended to the date falling one year after the Existing Maturity Date (except
that, if such date is not a Business Day, such Maturity Date as so extended
shall be the next preceding Business Day) and each Additional Commitment Lender
shall thereupon become a “Lender” for all purposes of this Agreement.


 


(f)            Conditions to
Effectiveness of Extensions. 
Notwithstanding the foregoing, the extension of the Maturity Date
pursuant to this Section shall not be effective with respect to any Lender
unless:


 


(i)            no Default shall have
occurred and be continuing on the date of such extension and after giving
effect thereto;


 


(ii)           the representations and
warranties contained in this Agreement are true and correct in all material
respects on and as of the date of such extension and after giving effect
thereto (other than representations and warranties qualified by materiality,
which shall be true and correct in all respects), as though made on and as of
such date (or, if any such representation or warranty is expressly stated to
have been made as of a specific date, as of such specific date); and


 


(iii)          on the Maturity Date of
each Non-Extending Lender, the Borrowers shall prepay any Committed Loans
outstanding on such date (and pay any additional amounts 


 


51

















 


required pursuant to Section 3.05) to the
extent necessary to keep outstanding Committed Loans ratable with any revised
Applicable Percentages of the respective Lenders effective as of such date.


 


(g)           Conflicting
Provisions.  This Section shall
supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


2.16        Increase in Commitments.


 


(a)           Request for Increase.  Provided there exists no Default, upon notice
to the Administrative Agent (which shall promptly notify the Lenders), the
Company may from time to time request an increase in the Aggregate Commitments
by an amount (for all such requests) not exceeding $250,000,000; provided
that (i) any such request for an increase shall be in a minimum amount of
$25,000,000, and (ii) the Company may make a maximum of five such
requests.  At the time of sending such
notice, the Company (in consultation with the Administrative Agent) shall
specify the time period (the “Election Period”) within which each Lender
is requested to respond (which shall in no event be less than ten Business Days
from the date of delivery of such notice to the Lenders).


 


(b)           Lender Elections to
Increase.  Each Lender in its sole
discretion shall notify the Administrative Agent within the Election Period
whether or not it agrees to increase its Commitment and, if so, whether by an
amount equal to, greater than, or less than its Applicable Percentage of such
requested increase.  Any Lender not
responding within the Election Period shall be deemed to have declined to
increase its Commitment.


 


(c)           Notification by
Administrative Agent; Additional Lenders. 
The Administrative Agent shall notify the Company and each Lender of the
Lenders’ responses to each request made hereunder.  To achieve the full amount of a requested
increase and subject to the approval of the Administrative Agent, the L/C
Issuer and the Swing Line Lender (which approvals shall not be unreasonably
withheld), at any time following the end of the Election Period, the Company
may also invite additional Eligible Assignees to become Lenders pursuant to a
joinder agreement in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.


 


(d)           Effective Date and
Allocations.  If the Aggregate
Commitments are increased in accordance with this Section, the Administrative
Agent and the Company shall determine the effective date (the “Increase
Effective Date”) and the final allocation of such increase.  The Administrative Agent shall promptly
notify the Company and the Lenders of the final allocation of such increase and
the Increase Effective Date.


 


(e)           Conditions to
Effectiveness of Increase.  As a
condition precedent to such increase, the Company shall deliver to the
Administrative Agent a certificate of each Loan Party dated as of the Increase
Effective Date (in sufficient copies for each Lender) signed by a Responsible
Officer of such Loan Party (i) certifying and attaching the resolutions
adopted by such Loan Party approving or consenting to such increase, and (ii) in
the case of the Company, certifying that, before and after giving effect to
such increase, (A) the representations and warranties contained in Article V
and the other Loan Documents are true and correct in all 


 


52

















 


material respects (other than representations and
warranties qualified by materiality, which shall be true and correct in all
respects) on and as of the Increase Effective Date, except to the extent that
such representations and warranties specifically refer to an earlier date, in
which case they are true and correct in all material respects (other than
representations and warranties qualified by materiality, which shall be true
and correct in all respects) as of such earlier date, and except that for
purposes of this Section 2.16, the representations and warranties
contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, (B) no
Default exists and (C) the Company is in pro  forma
compliance with the Consolidated Leverage Ratio covenant set forth in Section 7.11(b).  The Borrowers shall prepay any Committed
Loans outstanding on the Increase Effective Date (and pay any additional
amounts required pursuant to Section 3.05) to the extent necessary
to keep the outstanding Committed Loans ratable with any revised Applicable
Percentages arising from any nonratable increase in the Commitments under this
Section.


 


(f)            Conflicting
Provisions.  This Section shall
supersede any provisions in Section 2.13 or 10.01 to the
contrary.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.


 


(a)           Payments Free of
Taxes.  Any and all payments by or on
account of any obligation of the respective Borrowers hereunder or under any
other Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes; provided that if
the applicable Borrower shall be required by applicable law to deduct any
Indemnified Taxes (or any Other Taxes) from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or L/C Issuer, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii) such
Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


(b)           Payment of Other
Taxes by the Borrowers.  Without
limiting the provisions of subsection (a) above, each Borrower shall
timely pay any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.


 


(c)           Indemnification by
the Borrowers.  Each Borrower shall
indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10
days after demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or 


 


53

















 


liability delivered to a Borrower by a Lender or the
L/C Issuer (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.


 


(d)           Evidence of Payments.  As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority,
such Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.


 


(e)           Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which a Borrower is resident for tax purposes, or any treaty to
which such jurisdiction is a party, with respect to payments hereunder or under
any other Loan Document shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Company or the Administrative Agent, 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 of
withholding.  In addition, any Lender, if
requested by the Company or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Company or the Administrative Agent as will enable the Company or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


Without
limiting the generality of the foregoing, in the event that any Borrower is
resident for tax purposes in the United States, each Foreign Lender shall
deliver to Company and the Administrative Agent (in such number of copies as
shall be requested by the recipient) on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Company or the Administrative Agent, but
only if such Foreign Lender is then legally entitled to do so), whichever of
the following is applicable:


 


(i)            duly and properly
completed and executed original copies of Internal Revenue Service Form W-8BEN
(or any successor form) claiming eligibility for benefits of an income tax
treaty to which the United States is a party,


 


(ii)           duly and properly
completed and executed original copies of Internal Revenue Service Form W-8ECI
(or any successor form),


 


(iii)          in the case of a Foreign
Lender claiming the benefits of the exemption for portfolio interest under
section 881(c) of the Code, (x) a certificate to the effect that such
Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of
the Code, (B) a “10 percent shareholder” of the applicable Borrower within
the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly
and properly completed and executed original copies of Internal Revenue Service
Form W-8BEN (or any successor form), or


 


54

















 


(iv)          any other form
prescribed by applicable law as a basis for claiming exemption from or a reduction
in United States Federal withholding tax duly completed together with such
supplementary documentation as may be prescribed by applicable law to permit
the Company to determine the withholding or deduction required to be made.


 


Without
limiting the obligations of the Lenders set forth above regarding delivery of
certain forms and documents to establish each Lender’s status for U.S.
withholding tax purposes, each Lender agrees promptly to deliver to the
Administrative Agent or the Company, as the Administrative Agent or the Company
shall reasonably request, on or prior to the Closing Date, and in a timely
fashion thereafter, such other documents and forms required by any relevant
taxing authorities under the Laws of any other jurisdiction, duly executed and
completed by such Lender, as are required under such Laws to confirm or
continue such Lender’s entitlement to any available exemption from, or
reduction of, applicable withholding taxes in respect of all payments to be
made to such Lender outside of the U.S. by the Borrowers pursuant to this
Agreement or otherwise to establish such Lender’s status or continued status
for withholding tax purposes in such other jurisdiction.  Each Lender shall promptly (i) notify
the Administrative Agent of any change in circumstances which would modify or
render invalid any such claimed exemption or reduction, and (ii) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws of any such jurisdiction that any Borrower make any deduction or
withholding for taxes from amounts payable to such Lender.  Additionally, each of the Borrowers shall promptly
deliver to the Administrative Agent or any Lender, as the Administrative Agent
or such Lender shall reasonably request, on or prior to the Closing Date, and
in a timely fashion thereafter, such documents and forms required by any
relevant taxing authorities under the Laws of any jurisdiction, duly executed
and completed by such Borrower, as are required to be furnished by such Lender
or the Administrative Agent under such Laws in connection with any payment by
the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in
connection with the Loan Documents, with respect to such jurisdiction.


 


(f)            Treatment of
Certain Refunds.  If the
Administrative Agent, any Lender or the L/C Issuer determines, in its sole
discretion exercised in good faith, that it has received a refund of, or that
it has been able to offset its liability for Taxes with a credit attributable to such Taxes paid (a “utilized
credit”) for any Taxes or Other Taxes as to which it has been indemnified
by any Borrower or with respect to which any Borrower has paid additional
amounts pursuant to this Section, it shall promptly after the date of such
determination pay to such Borrower an amount equal to such refund or utilized
credit (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower under this Section with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or the L/C Issuer, as the
case may be, and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that each
Borrower, upon the request of the Administrative Agent, such Lender or the L/C
Issuer, agrees to repay the amount paid over to such Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the
event the Administrative Agent, such Lender or the L/C Issuer is required to
repay such refund or utilized credit to such Governmental Authority.  This subsection shall not be construed to
require the Administrative 


 


55

















 


Agent, any Lender or the L/C Issuer to make available
its tax returns (or any other information relating to its taxes that it deems
confidential) to any Borrower or any other Person.


 


3.02        Illegality.  If any Lender determines in good faith that
any Law has made it unlawful, or that any Governmental Authority has asserted
that it is unlawful, for any Lender or its applicable Lending Office to make,
maintain or fund Eurocurrency Rate Loans (whether denominated in Dollars or an
Alternative Currency), or to determine or charge interest rates based upon the
Eurocurrency Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take
deposits of, Dollars or any Alternative Currency in the applicable interbank
market, then, on notice thereof by such Lender to the Company through the
Administrative Agent, any obligation of such Lender to make or continue
Eurocurrency Rate Loans in the affected currency or currencies or, in the case
of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to
Eurocurrency Rate Loans, shall be suspended until such Lender notifies the
Administrative Agent and the Company that the circumstances giving rise to such
determination no longer exist.  Upon
receipt of such notice, the Borrowers shall, upon written demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable and
such Loans are denominated in Dollars, convert all such Eurocurrency Rate Loans
of such Lender to Base Rate Loans, either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurocurrency
Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurocurrency Rate Loans.  Upon any such prepayment or conversion, the
Borrowers shall also pay accrued interest on the amount so prepaid or
converted.


 


3.03        Inability to Determine
Rates.  If the Required Lenders
determine in good faith that for any reason in connection with any request for
a Eurocurrency Rate Loan or a conversion to or continuation thereof that (a) deposits
(whether in Dollars or an Alternative Currency) are not being offered to banks
in the applicable offshore interbank market for such currency for the
applicable amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan (whether denominated in Dollars or
an Alternative Currency), or (c) the
Eurocurrency Rate for any requested Interest Period with respect to a
proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost
to such Lenders of funding such Eurocurrency Rate Loan, the Administrative
Agent will promptly so notify the Company and each Lender.  Within a reasonable time thereafter, the
obligation of the Lenders to make or maintain Eurocurrency Rate Loans in the
affected currency or currencies shall be suspended until the Administrative Agent
reasonably believes that such circumstances no longer exist.  Upon receipt of such notice, the Company may
revoke any pending request for a Borrowing of, conversion to or continuation of
Eurocurrency Rate Loans in the affected currency or currencies or, failing
that, will be deemed to have converted such request into a request for a
Committed Borrowing of Base Rate Loans in the amount specified therein.


 


3.04        Increased Costs.


 


(a)           Increased Costs
Generally.  If any Change in Law
shall:


 


(i)            impose, modify or deem
applicable any reserve, special deposit, compulsory loan, insurance charge or
similar requirement against assets of, deposits with 


 


56

















 


or for the account of, or credit extended or
participated in by, any Lender (except (A) any reserve requirement reflected in the Eurocurrency Rate and
(B) the requirements of the Bank of England and the Financial Services
Authority or the European Central Bank reflected in the Mandatory Cost, other
than as set forth below) or the L/C Issuer;


 


(ii)           subject any Lender or
the L/C Issuer to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of Credit or any
Eurocurrency Rate Loan made by it, or change the basis of taxation of payments
to such Lender or the L/C Issuer in respect thereof (except for Indemnified
Taxes or Other Taxes covered by Section 3.01 and the imposition of,
or any change in the rate of, any Excluded Tax payable by such Lender or the
L/C Issuer);


 


(iii)          result in the failure of
the Mandatory Cost, as calculated hereunder, to represent the cost to any
Lender of complying with the requirements of the Bank of England and/or the
Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or


 


(iv)          impose on any Lender or
the L/C Issuer any other material condition, cost or expense affecting this
Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of
Credit or participation therein;


 


and the result
of any of the foregoing shall be to increase the cost to such Lender of making
or maintaining any Eurocurrency Rate Loan (or of maintaining its obligation to
make any such Loan), or to increase the cost to such Lender or the L/C Issuer
of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or the
L/C Issuer hereunder (whether of principal, interest or any other amount) then,
upon request of such Lender or the L/C Issuer, the Company will pay (or cause
the applicable Designated Borrower to pay) to such Lender or the L/C Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or the L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered.


 


(b)           Capital Requirements.  If any Lender or the L/C Issuer determines
that any Change in Law affecting such Lender or the L/C Issuer or any Lending
Office of such Lender or such Lender’s or the L/C Issuer’s holding company, if
any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lender’s or the L/C Issuer’s capital or on the
capital of such Lender’s or the L/C Issuer’s holding company, if any, as a
consequence of this Agreement, the Commitments of such Lender or the Loans made
by, or participations in Letters of Credit held by, such Lender, or the Letters
of Credit issued by the L/C Issuer, to a level below that which such Lender or
the L/C Issuer or such Lender’s or the L/C Issuer’s holding company could have
achieved but for such Change in Law (taking into consideration such Lender’s or
the L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’s
holding company with respect to capital adequacy), then from time to time the
Company will pay (or cause the applicable Designated Borrower to pay) to such
Lender or the L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or the L/C Issuer or such Lender’s or the L/C
Issuer’s holding company for any such reduction suffered.


 


57

















 


(c)           Certificates for
Reimbursement.  A certificate of a
Lender or the L/C Issuer setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and
delivered to the Company shall be conclusive absent manifest error.  The Company shall pay (or cause the
applicable Designated Borrower to pay) such Lender or the L/C Issuer, as the
case may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.


 


(d)           Delay in Requests.  Failure or delay on the part of any Lender or
the L/C Issuer to demand compensation pursuant to the foregoing provisions of
this Section shall not constitute a waiver of such Lender’s or the L/C
Issuer’s right to demand such compensation; provided that no Borrower
shall be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than six months prior to the date that such Lender or
the L/C Issuer, as the case may be, notifies the Company of the Change in Law
giving rise to such increased costs or reductions and of such Lender’s or the
L/C Issuer’s intention to claim compensation therefor (except that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to include the
period of retroactive effect thereof).


 


(e)           Additional Reserve Requirements.  The
Company shall pay (or cause the applicable Designated Borrower to pay) to each
Lender, as long as such Lender shall be required to comply with any
reserve ratio requirement or analogous requirement of any central banking or
financial regulatory authority imposed after the date hereof in respect of the
maintenance of the Commitments or the funding of the Eurocurrency Rate Loans,
such additional costs (expressed as a percentage per annum and rounded upwards,
if necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive absent manifest
error), which shall be due and payable
on each date on which interest is payable on such Loan; provided the
Company shall have received at least 10 days’ prior notice (with a copy to the
Administrative Agent) of such additional costs from such Lender.  If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional costs shall be due
and payable 10 days from receipt of such notice.


 


3.05        Compensation for Losses.  Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Company shall promptly compensate
(or cause the applicable Designated Borrower to compensate) such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:


 


(a)           any continuation,
conversion, payment or prepayment of any Loan other than a Base Rate Loan on a
day other than the last day of the Interest Period for such Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);


 


(b)           any failure by any
Borrower (for a reason other than the failure of such Lender to make a Loan) to
prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the
date or in the amount notified by the Company or the applicable Designated
Borrower;


 


58

















 


(c)           any failure
by any Borrower to make payment of any Loan or drawing under any Letter of Credit
(or interest due thereon) denominated in an Alternative Currency on its
scheduled due date or any payment thereof in a different currency (except as
pursuant to the terms of this Agreement); or


 


(d)           any assignment of a
Eurocurrency Rate Loan on a day other than the last day of the Interest Period
therefor as a result of a request by the Company pursuant to Section 10.13;


 


including any
loss or expense incurred from the liquidation or reemployment of funds obtained
by it to maintain such Loan, from fees payable to terminate the deposits from
which such funds were obtained or from the performance of any foreign exchange
contract.  The Company shall also pay (or
cause the applicable Designated Borrower to pay) any customary and reasonable
administrative fees charged by such Lender in connection with the foregoing.


 


For purposes
of calculating amounts payable by the Company (or the applicable Designated
Borrower) to any Lender under this Section 3.05, such calculation
shall, if applicable, include any losses to such Lender resulting from such
Lender having funded a Eurocurrency Rate Loan made by it at the Eurocurrency
Rate for such Loan by making a matching deposit or other borrowing in the
offshore interbank market for such currency for a comparable amount and for a
comparable period.  A certificate of any
Lender setting forth the amount or amounts necessary to compensate such Lender
as specified in this Section shall be conclusive absent manifest error.


 


3.06        Mitigation Obligations;
Replacement of Lenders.


 


(a)           Designation of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or any
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
or if any Lender gives a notice pursuant to Section 3.02, then such
Lender shall use all commercially reasonable efforts to designate a different
Lending Office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 3.01 or 3.04, as
the case may be, in the future, or eliminate the need for the notice pursuant
to Section 3.02, as applicable, and (ii) in each case, would
not subject such Lender to any cost or expense and would not otherwise be
disadvantageous to such Lender.  The
Company hereby agrees to pay (or to cause the applicable Designated Borrower to
pay) all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.


 


(b)           Replacement of
Lenders.  If any Lender requests
compensation under Section 3.04, or if any Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 3.01, the Company may
replace such Lender in accordance with Section 10.13.


 


3.07        Survival.  All of the Borrowers’ obligations under this Article III
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.


 


59


















 


ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


4.01        Conditions of Initial
Credit Extension.  The obligation of
the L/C Issuer and each Lender to make its initial Credit Extension hereunder
is subject to satisfaction of the following conditions precedent:


 


(a)           The Administrative
Agent’s receipt of the following, each of which shall be originals, telecopies
or images in “portable document format” delivered by e-mail (followed promptly
by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party, each dated the Closing Date (or,
in the case of certificates of governmental officials, a recent date before the
Closing Date) and each in form and substance reasonably satisfactory to the
Administrative Agent and each of the Lenders:


 


(i)            executed counterparts
of this Agreement and the Guaranties, sufficient in number for distribution to
the Administrative Agent, each Lender and the Company;


 


(ii)           Notes executed by the
Borrowers in favor of each Lender requesting Notes;


 


(iii)          such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Administrative Agent may
reasonably require evidencing the identity, authority and capacity of each
Responsible Officer thereof authorized to act as a Responsible Officer in
connection with this Agreement and the other Loan Documents to which such Loan
Party is a party;


 


(iv)          such documents and
certifications as the Administrative Agent may reasonably require to evidence
that each Loan Party is duly organized or formed, and that each Loan Party is
validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification, except to the extent that
failure to do so could not reasonably be expected to have a Material Adverse
Effect;


 


(v)           a favorable opinion of (A) Dechert
LLP, counsel to the Loan Parties and and (B) Baker & McKenzie
LLP, California counsel to the Loan Parties, in each case addressed to the
Administrative Agent and each Lender, as to the matters concerning the Loan
Parties and the Loan Documents as the Required Lenders may reasonably request;


 


(vi)          a certificate of a
Responsible Officer of each Loan Party either (A) attaching copies of all
consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan
Party of the Loan Documents to which it is a party, and such consents, licenses
and approvals shall be in full force and effect, or (B) stating that no
such consents, licenses or approvals are so required;


 


(vii)         a certificate signed by a
Responsible Officer of the Company certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been
satisfied, and (B) that there has been no event or circumstance since the
date of the Audited Financial 


 


60

















 


Statements that has had or could be reasonably
expected to have, either individually or in the aggregate, a Material Adverse
Effect; and (C) a calculation of the Consolidated Leverage Ratio as of the
last day of the fiscal quarter of the Company most recently ended prior to the
Closing Date;


 


(viii)        a duly completed
Compliance Certificate as of the last day of the fiscal quarter of the Company
ended on September 30, 2007, signed by a Responsible Officer of the
Company;


 


(ix)           evidence that the
Existing Credit Agreement has been or concurrently with the Closing Date is
being terminated and all Liens securing obligations under the Existing Credit
Agreement have been or concurrently with the Closing Date are being released;
and


 


(x)            such other assurances,
certificates, documents or consents as the Administrative Agent, the L/C
Issuer, the Swing Line Lender or the Required Lenders reasonably may require.


 


(b)           Any fees required to be
paid on or before the Closing Date shall have been paid.


 


(c)           Unless waived by the Administrative
Agent, the Company shall have paid all fees, charges and disbursements of
counsel to the Administrative Agent (directly to such counsel if requested by
the Administrative Agent) to the extent invoiced prior to or on the Closing
Date, plus such additional amounts of such fees, charges and disbursements as
shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude a final settling of
accounts between the Company and the Administrative Agent).


 


(d)           The Closing
Date shall have occurred on or before December 31, 2007.


 


Without
limiting the generality of the provisions of Section 9.04, for
purposes of determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


4.02        Conditions to all Credit
Extensions.  The obligation of each
Lender to honor any Request for Credit Extension (other than a Committed Loan
Notice requesting only a conversion of Committed Loans to the other Type, or a
continuation of Eurocurrency Rate Loans) is subject to the following conditions
precedent:


 


(a)           The representations and
warranties of (i) the Borrowers contained in Article V and (ii) each
Loan Party contained in each other Loan Document or in any document furnished
at any time under or in connection herewith or therewith, shall be true and
correct in all material respects on and as of the date of such Credit Extension
(other than representations and warranties qualified by materiality, which
shall be true and correct in all respects), except 


 


61

















 


to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and
(b) of Section 5.05 shall be deemed to refer to the
most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01.


 


(b)           No Default shall exist,
or would result from such proposed Credit Extension or the application of the
proceeds thereof.


 


(c)           The Administrative
Agent and, if applicable, the L/C Issuer or the Swing Line Lender shall have
received a Request for Credit Extension in accordance with the requirements
hereof.


 


(d)           If the applicable
Borrower is a Designated Borrower, then the conditions of Section 2.14
to the designation of such Borrower as a Designated Borrower shall have been
met to the reasonable satisfaction of the Administrative Agent.


 


(e)           In the case of a Credit
Extension to be denominated in an Alternative Currency, there shall not have
occurred any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which in
the reasonable opinion of the Administrative Agent, the Required Lenders (in
the case of any Loans to be denominated in an Alternative Currency) or the L/C
Issuer (in the case of any Letter of Credit to be denominated in an Alternative
Currency) would make it impracticable for such Credit Extension to be
denominated in the relevant Alternative Currency.


 


Each Request
for Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of
Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a) and
(b) have been satisfied on and as of the date of the applicable
Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


Except as
otherwise provided in Section 5.18, each Borrower represents and
warrants to the Administrative Agent and the Lenders that:


 


5.01        Existence, Qualification
and Power.  Each Loan Party (a) is
duly organized or formed, validly existing and, as applicable, in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority to execute, deliver and perform its
obligations under the Loan Documents to which it is a party, (c) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to own or lease its assets and carry on
its business, and (d) is duly qualified and is licensed and, as
applicable, in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business
requires such qualification or license; except in each case referred to in clause
(c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


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5.02        Authorization; No Conflict.  The execution, delivery and performance by
each Loan Party of each Loan Document to which such Person is party, have been
duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) conflict with the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach of, or
the creation of any Lien under, or require any payment to be made under (i) any
Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any
Law, except in each case referred to in clause (b) and (c), to the extent
that such conflict, breach, creation, payment or violation could not reasonably
be expected to have a Material Adverse Effect.


 


5.03        Governmental
Authorization; Other Consents.  No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person is necessary or
required in connection with the execution, delivery or performance by, or
enforcement against, any Loan Party of this Agreement or any other Loan
Document, except for such approvals, consents, exemptions, authorizations,
actions, notices or filings that the failure to obtain could not reasonably be
in expected to have a Material Adverse Effect.


 


5.04        Binding Effect.  This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. 
This Agreement constitutes, and each other Loan Document when so
delivered will constitute, a legal, valid and binding obligation of such Loan
Party, enforceable against each Loan Party that is party thereto in accordance
with its terms subject to the effect of any applicable bankruptcy, moratorium,
insolvency, reorganization or other similar laws affecting the enforceability
of creditors rights generally and to the effect of general principles of equity
which may limit the availability of equitable remedies (whether in a proceeding
at law or in equity).


 


5.05        Financial Statements; No
Material Adverse Effect.


 


(a)           The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present in all material respects the financial
condition of the Company and its Subsidiaries as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and
other liabilities, direct or contingent, of the Company and its Subsidiaries as
of the date thereof which would be required to be disclosed by GAAP, including
liabilities for taxes, material commitments and Indebtedness.


 


(b)           The unaudited
consolidated balance sheets of
the Company and its Subsidiaries dated September 30, 2007, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for the fiscal quarter ended on that date (i) were prepared in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, and (ii) fairly
present in all material respects the financial condition of the Company and its
Subsidiaries as of the date thereof and their results of 


 


63

















 


operations for the period covered thereby, subject, in
the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments.


 


(c)           Since the date of the
Audited Financial Statements, there has been no event or circumstance, either
individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.


 


(d)           The consolidated
forecasted balance sheet and statements of income and cash flows of the Company
and its Subsidiaries delivered pursuant to Section 6.01(c) were
prepared in good faith on the basis of the assumptions stated therein, which
assumptions were reasonable in light of the conditions existing at the time of
delivery of such forecasts, and represented, at the time of delivery, the
Company’s good faith estimate of its future financial condition and performance
(it being recognized by the Agent and the Lenders that such projections as to
future events are not viewed as facts and that actual results during the period
or periods covered thereby may differ from projected results).


 


5.06        Litigation.  There
are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of the Company, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Company or any of its
Subsidiaries or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement or any other Loan Document, or any of
the transactions contemplated hereby, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect.


 


5.07        No Default.  Neither any Loan Party nor any Subsidiary
thereof is in default under or with respect to any Contractual Obligation that
could, either individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.  No Default
has occurred and is continuing or would result from the consummation of the
transactions contemplated by this Agreement or any other Loan Document.


 


5.08        Ownership of Property;
Liens.  Each of the Company and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except to the extent that the failure to have such
title or leasehold interest could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  The property of the Company and its
Subsidiaries is subject to no material Liens, other than Liens permitted by Section 7.01.


 


5.09        Environmental Compliance.  The Company and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing
Environmental Laws and claims against the Company and its Subsidiaries alleging
potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof
the Company has reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


5.10        Insurance.  The properties of the Company and its
Subsidiaries are insured with insurance companies not Affiliates of the Company
that the Company believes (in the good faith 


 


64

















 


judgment of the
management of the Company) are financially sound and reputable and in such
amounts, with such deductibles and covering such risks, as the Company believes
(in the good faith judgment of management of the Company) as are customarily
carried by companies engaged in similar businesses and owning similar
properties in localities where the Company or the applicable Subsidiary
operates.


 


5.11        Taxes.  The Company and its Subsidiaries have filed
or caused to be filed all Federal, state and other material tax returns and
reports required to be filed (or extensions thereof have been obtained in
accordance with applicable Law), and have paid or caused to be paid all
Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against
the Company or any Subsidiary that could reasonably be expected to have a
Material Adverse Effect.  Except as set
forth in Schedule 5.11, neither any Loan Party nor any Subsidiary
thereof is party to any tax sharing agreement other than tax sharing agreements
as to which the Company or its Subsidiaries are the only parties.


 


5.12        ERISA Compliance.


 


(a)           The Company and each
ERISA Affiliate have made all required contributions to each Plan subject to Section 412
of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.


 


(b)           There are no pending or,
to the knowledge of the Company, threatened claims, actions or lawsuits, or
action by any Governmental Authority, with respect to any Plan that could
reasonably be expected to have a Material Adverse Effect.  There has been no prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.


 


(c)           (i)  No ERISA
Event has occurred or is reasonably expected to occur; (ii) no Pension Plan
has any Unfunded Pension Liability; (iii) neither the Company nor any
ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) neither the
Company nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Company nor any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.


 


5.13        Subsidiaries; Equity
Interests.  As of the Closing Date,
the Company has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such
Subsidiaries have been validly issued, and to the extent applicable are fully
paid and nonassessable and are owned by a Loan Party in the amounts specified
on Part (a) of Schedule 5.13 free and clear of all Liens
(other than Liens permitted 


 


65

















 


under Section 7.01).  As of the Closing Date, the Company has no
equity investments in excess of $2,500,000 in any other corporation or entity
other than those specifically disclosed in Part(b) of Schedule 5.13
(which Schedule may be updated from time to time upon request by the
Administrative Agent).  All of the
outstanding Equity Interests in the Company have been validly issued and are fully paid and nonassessable.


 


5.14        Margin Regulations;
Investment Company Act; Public Utility Holding Company Act.


 


(a)           No Borrower is engaged
or will engage, principally or as one of its important activities, in the
business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock in violation of applicable law.


 


(b)           None of the Company,
any Person Controlling the Company, or any or is required to be registered as
an “investment company” under the Investment Company Act of 1940.


 


5.15        Disclosure.  No written report, financial statement,
certificate or other information (taken as a whole) furnished in writing by or
on behalf of any Loan Party to the Administrative Agent or any Lender on or
before the Closing Date in connection with the transactions contemplated hereby
and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case, as modified or supplemented by other information
so furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein (taken as a whole), in
the light of the circumstances under which they were made, not misleading; provided
that it is understood and agreed that for purposes of this Section 5.15,
such reports, statements, certificates and information shall not include
projections and pro forma financial information or any information of a general
economic or industry nature.


 


5.16        Compliance with Laws.  Each Loan Party and each Subsidiary thereof
is in compliance in all material respects with the requirements of all Laws and
all orders, writs, injunctions and decrees applicable to it or to its
properties, except in such instances in which (a) such requirement of Law
or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith, either individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.


 


5.17        Taxpayer Identification
Number; Other Identifying Information. 
The true and correct U.S. taxpayer identification number of the Company and each Designated Borrower that is a party
hereto on the Closing Date is set forth on Schedule 5.17.  The true and correct unique identification
number of each Designated Borrower that is a Foreign Subsidiary and a party
hereto on the Closing Date that has been issued by its jurisdiction of
organization and the name of such jurisdiction are set forth on Schedule
5.17.


 


5.18        Intellectual
Property; Licenses, Etc.  The Company
and its Subsidiaries own, or possess the right to use under license, all
material IP Rights that are reasonably necessary for the 


 


66

















 


operation of their
respective businesses as currently conducted except as could not reasonably be
expected to have a Material Adverse Effect. 
To the knowledge of the Company, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now planned to be employed in the Company’s current written business plans, by
the Company or any Subsidiary infringes upon any IP Rights held by any other
Person.  The Company has not received any
written claim and no litigation is pending or, to the knowledge of the Company,
threatened, in which it is asserted that the Company infringed, misappropriated
or violated the IP Rights of any other Person which, either individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.


 


5.19        Representations as to
Foreign Obligors. Each of the Company and each Foreign
Obligor represents and warrants to the Administrative Agent and the Lenders
that:


 


(a)           Such Foreign Obligor is subject to
civil and commercial Laws with respect to its obligations under this Agreement
and the other Loan Documents to which it is a party (collectively as to such
Foreign Obligor, the “Applicable Foreign Obligor Documents”), and the
execution, delivery and performance by such Foreign Obligor of the Applicable
Foreign Obligor Documents constitute and will constitute private and commercial
acts and not public or governmental acts. 
Neither such Foreign Obligor nor any of its property has any immunity
from jurisdiction of any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under the laws of the jurisdiction in which
such Foreign Obligor is organized and existing in respect of its obligations
under the Applicable Foreign Obligor Documents.


 


(b)           The Applicable Foreign
Obligor Documents are in proper legal form under the Laws of the jurisdiction
in which such Foreign Obligor is organized and existing for the enforcement
thereof against such Foreign Obligor under the Laws of such jurisdiction, and
to ensure the legality, validity, enforceability, priority or admissibility in
evidence of the Applicable Foreign Obligor Documents.  It is not necessary to ensure the legality,
validity, enforceability, priority or admissibility in evidence of the
Applicable Foreign Obligor Documents that the Applicable Foreign Obligor
Documents be filed, registered or recorded with, or executed or notarized
before, any court or other authority in the jurisdiction in which such Foreign
Obligor is organized and existing or that any registration charge or stamp or similar
tax be paid on or in respect of the Applicable Foreign Obligor Documents or any
other document, except for (i) any such filing, registration, recording,
execution or notarization as has been made or is not required to be made until
the Applicable Foreign Obligor Document or any other document is sought to be
enforced and (ii) any charge or tax as has been timely paid.


 


(c)           There is no tax, levy,
impost, duty, fee, assessment or other governmental charge, or any deduction or
withholding, imposed by any Governmental Authority in or of the jurisdiction in
which such Foreign Obligor is organized and existing either (i) on or by
virtue of the execution or delivery of the Applicable Foreign Obligor Documents
or (ii) on any payment to be made by such Foreign Obligor pursuant to the
Applicable Foreign Obligor Documents, except as has been disclosed to the
Administrative Agent.


 


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(d)           The execution, delivery
and performance of the Applicable Foreign Obligor Documents executed by such
Foreign Obligor are, under applicable foreign exchange control regulations of
the jurisdiction in which such Foreign Obligor is organized and existing, not
subject to any notification or authorization except (i) such as have been
made or obtained or (ii) such as cannot be made or obtained until a later
date (provided that any notification or authorization described in clause
(ii) shall be made or obtained as soon as is reasonably practicable).


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than contingent
indemnification obligations), or any Letter of Credit shall remain outstanding,
the Company shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) cause each Subsidiary to:


 


6.01        Financial Statements.  Deliver to the Administrative Agent for
distribution to each Lender:


 


(a)           as soon as available,
but in any event within 90 days after the end of each fiscal year of the
Company (commencing with the fiscal year ended December 31, 2007), a
consolidated balance sheet of the Company and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, such consolidated
statements to be audited and accompanied by (i) a report and opinion of a
Registered Public Accounting Firm of nationally recognized standing, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and applicable Securities Laws and shall not be subject to
any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit or with respect to the absence of any
material misstatement (it being understood that such financial statements and
opinion may be furnished if included therein, in the form of the Company’s
Annual Report on Form 10-K and any related Annual Report filed with the
SEC);


 


(b)           as soon as
available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company (commencing with the
fiscal quarter ended March 31, 2008), a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of operations, shareholders’ equity and cash
flows for such fiscal quarter and for the portion of the Company’s fiscal year
then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding
portion of the previous fiscal year, all in reasonable detail, such
consolidated statements to be certified by the chief executive officer, chief
financial officer, treasurer or controller of the Company as fairly presenting
in all material respects the financial condition, results of operations,
shareholders’ equity and cash flows of the Company and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the
absence of 


 


68

















 


footnotes (it
being understood that such financial statements may be furnished, if included
therein, in the form of the Company’s Quarterly Report on Form 10-Q filed
with the SEC); and


 


(c)           as soon as available,
but in any event at least 60 days after the end of each fiscal year of the
Company, forecasts prepared by management of the Company as customarily
prepared, of consolidated balance sheets and statements of income or operations
and cash flows of the Company and its Subsidiaries on an annual basis for the
immediately following fiscal year (including the fiscal year in which the
Maturity Date occurs).


 


As to any
information contained in materials furnished pursuant to Section 6.02(c),
the Company shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation
of the obligation of the Company to furnish the information and materials
described in clauses (a) and (b) above at the times
specified therein.


 


6.02        Certificates; Other
Information.  Deliver to the
Administrative Agent for distribution to each Lender in form and detail
reasonably satisfactory to the Administrative Agent:


 


(a)           concurrently with the
delivery of the financial statements referred to in Sections 6.01(a) and
(b) (commencing with the delivery of the financial statements for
the fiscal year ended December 31, 2007), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer,
treasurer or controller of the Company;


 


(b)           promptly after any
request by the Administrative Agent or any Lender, copies of any detailed audit
reports submitted to the board of directors (or the audit committee of the
board of directors) of the Company by independent accountants in connection
with the accounts or books of the Company or any Subsidiary, or any audit of
any of them;


 


(c)           promptly after the same
are available, copies of each annual report, proxy or financial statement or
other report or communication sent to the stockholders of the Company, and
copies of all annual, regular, periodic and special reports and registration
statements which the Company may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, and not
otherwise required to be delivered to the Administrative Agent pursuant hereto;


 


(d)           promptly, and in any event within five Business Days after receipt
thereof by any Loan Party or any Subsidiary thereof, copies of each notice or
other correspondence received from the SEC (or comparable agency in any
applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other
operational results of any Loan Party or any Subsidiary thereof; and


 


(e)           promptly, such
additional information regarding the business, financial or corporate affairs
of the Company or any Subsidiary, or compliance with the terms of the Loan
Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


 


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Documents
required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on
which the Company posts such documents, or provides a link thereto on the
Company’s website on the Internet at the website address listed on Schedule
10.02; or (ii) on which such documents are posted on the Company’s
behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: the
Company shall notify the Administrative Agent (who will notify each Lender by
telecopier or e-mail) of the posting of any such documents.  Notwithstanding anything contained herein, in
every instance the Company shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(b) to the
Administrative Agent.  Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Company with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.


 


Each Borrower
hereby acknowledges that (a) the Administrative Agent and/or the Arranger
will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of such Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to any Borrower or its
securities) (each, a “Public Lender”). 
Each Borrower hereby agrees that, so long as the Company is required to file periodic reports under the
Exchange Act, (w) all Borrower Materials that are to be made
available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”
which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently
on the first page thereof; (x) by marking Borrower Materials “PUBLIC,”
the Borrowers shall be deemed to have authorized the Administrative Agent, the
Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as
not containing any material non-public information with respect to the
Borrowers or their respective securities for purposes of United States Federal
and state securities laws (provided that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.07);
(y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower
Materials that are not marked “PUBLIC” as being suitable only for posting on a
portion of the Platform not designated “Public Investor.”  Notwithstanding
the foregoing, no Borrower shall be under any obligation to mark any Borrower
Materials “PUBLIC.”


 


6.03        Notices.  Promptly notify the Administrative Agent:


 


(a)           of the occurrence of
any Default;


 


(b)           of any matter that has
resulted, or to any Loan Party’s knowledge could reasonably be expected to
result, in a Material Adverse Effect, including (i) breach or
non-performance of, or any default under, a Contractual Obligation of the
Company or any 


 


70

















 


Subsidiary; (ii) any dispute, litigation,
investigation, proceeding or suspension between the Company or any Subsidiary
and any Governmental Authority; or (iii) the commencement of, or any
material development in, any litigation or proceeding affecting the Company or
any Subsidiary, including pursuant to any applicable Environmental Laws;


 


(c)           of the occurrence of
any ERISA Event; and


 


(d)           of any material change
in accounting policies or financial reporting practices by the Company or any
Subsidiary.


 


Each notice
pursuant to this Section 6.03 shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the occurrence
referred to therein and stating what action the Company has taken and proposes
to take with respect thereto.  Each
notice pursuant to Section 6.03(a) shall describe with
reasonable particularity any and all provisions of this Agreement and any other
Loan Document that have been breached.


 


6.04        Payment of Obligations.  Pay and discharge as the same shall become
due and payable, all its material obligations and liabilities, including (a) all
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Company or such Subsidiary; (b) all
lawful claims which, if unpaid, would by law become a Lien upon a material
piece or portion of its property; and (c) all material Indebtedness, as
and when due and payable, but subject to any subordination provisions contained
in any instrument or agreement evidencing such Indebtedness.


 


6.05        Preservation of Existence,
Etc.  (a) Preserve, renew and
maintain in full force and effect its legal existence and good standing under
the Laws of the jurisdiction of its organization except in a transaction
permitted by Section 7.04 or 7.05; (b) take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) preserve or renew all of its registered
patents, trademarks, trade names and service marks, the non-preservation of
which could reasonably be expected to have a Material Adverse Effect.


 


6.06        Maintenance of Properties.  (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
and (b) make all necessary repairs thereto and renewals and replacements
thereof except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


6.07        Maintenance of Insurance.  Maintain with insurance companies not
Affiliates of the Company that the Company believes (in the good faith judgment
of the management of the Company) are financially sound and reputable insurance
with respect to its properties and business against loss or damage as the
Company believes (in the good faith of management of the Company) of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as the Company believes (in the good faith 


 


71

















 


of management of the
Company) as are customarily carried under similar circumstances by such other
Persons.


 


6.08        Compliance with Laws.  Comply in all material respects with the
requirements of all Laws and all orders, writs, injunctions and decrees
applicable to it or to its business or property, except in such instances in
which (a) such requirement of Law or order, writ, injunction or decree is
being contested in good faith by appropriate proceedings diligently conducted;
or (b) the failure to comply therewith could not reasonably be expected to
have a Material Adverse Effect.


 


6.09        Books and Records.  Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Company or such Subsidiary, as the case may be.


 


6.10        Inspection Rights.  Permit representatives and independent
contractors of the Administrative Agent to visit and inspect any of its
properties, to examine its corporate, financial and operating records, and make
copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and so long as a Responsible Officer of
the Company is present, independent public accountants, all at the expense of
the Company and at such reasonable times during normal business hours, upon
reasonable advance written notice to the Company; provided that when an
Event of Default has occurred and is continuing the Administrative Agent or any
Lender (or any of their respective representatives or independent contractors)
may do any of the foregoing at the expense of the Company at any time during
normal business hours and without advance notice; provided that
notwithstanding the foregoing, if no Event of Default has occurred and is
continuing, such visits and inspections shall not occur more than once per
calendar year.


 


6.11        Use of Proceeds.  Use the proceeds of the Credit Extensions for
general corporate purposes not in contravention of any Law or of any Loan
Document.


 


6.12        Approvals and
Authorizations.  Maintain all
authorizations, consents, approvals and licenses from, exemptions of, and
filings and registrations with, each Governmental Authority of the jurisdiction
in which each Foreign Obligor is organized and existing, and all approvals and
consents of each other Person in such jurisdiction, in each case that are
required in connection with the Loan Documents.


 


6.13        Additional Subsidiary
Guarantors.  (a) Notify the
Administrative Agent at the time that any Person becomes a Domestic Subsidiary
which is a Material Subsidiary and promptly thereafter (and in any event within
30 days), cause such Person to (i) become a Guarantor by executing and
delivering to the Administrative Agent a counterpart of the Guaranty or such
other document as the Administrative Agent shall deem appropriate for such
purpose, and (ii) deliver to the Administrative Agent documents of the
types referred to in clauses (iii) and (iv) of Section 4.01(a),
all in form, content and scope reasonably satisfactory to the Administrative
Agent.


 


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(b)           Notwithstanding clause
(a) above, at the end of each fiscal quarter, cause the Loan Parties
to constitute at least (i) 90% or more of total assets of the Company and
its Domestic Subsidiaries on a combined basis and (ii) 90% or more of
revenues of the Company and its Domestic Subsidiaries on a combined basis.  The Company may from time to time cause
Domestic Subsidiaries to become Subsidiary Guarantors for purposes of complying
with this clause (b) (whether or not such Subsidiaries are Material
Subsidiaries).


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied (other than contingent indemnification
obligations), or any Letter of Credit shall remain outstanding, the Company
shall not, nor shall it permit any Subsidiary to, directly or indirectly:


 


7.01        Liens.  Create, incur, assume or suffer to exist any
Lien upon any of its property, assets or revenues, whether now owned or
hereafter acquired, other than the following:


 


(a)           Liens pursuant to any
Loan Document;


 


(b)           Permitted Liens;


 


(c)           Liens existing on the
date hereof and listed on Schedule 7.01 and any renewals or extensions
thereof; provided that (i) the property covered thereby is not
changed, (ii) the amount secured or benefited thereby is not increased
except as contemplated by Section 7.03(b), (iii) the direct or
any contingent obligor with respect thereto is not changed, and (iv) any
renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);


 


(d)           Liens securing
Indebtedness permitted under Section 7.03(e); provided that (i) such
Liens do not at any time encumber any property other than the property financed
by such Indebtedness except for accessions to such property and the proceeds
and the products thereof and (ii) individual financings of equipment
provided by one lender may be cross collateralized to other financings of
equipment provided by such lender;


 


(e)           Liens arising from
licenses of IP Rights owned by the Company or any Subsidiary which are granted
in the ordinary course of business; and


 


(f)            Liens securing
Indebtedness permitted under (i) Section 7.03(g)(i) in an
aggregate amount not to exceed $20,000,000 and (ii) under Section 7.03(g)(ii) in
an aggregate amount not to exceed $50,000,000.


 


7.02        Investments.  Make any Investments, except:


 


(a)           Permitted Investments;


 


(b)           loans and advances to
officers, directors and employees of the Company or any of its Subsidiaries (i) for
reasonable and customary business-related travel, entertainment, 


 


73

















 


relocation and analogous ordinary business purposes
(including employee payroll advances), (ii) in connection with such Person’s
purchase of Equity Interests of the Company or any of its Subsidiaries to the
extent that the amount of such loans and advances are contributed to the
Company or any such Subsidiary in cash and (iii) for purposes not
described in the foregoing clauses (i) and (ii), in an aggregate principal
amount outstanding not to exceed $5,000,000;


 


(c)           Investments existing
on, or contemplated as of, the date hereof and listed on Schedule 7.02
and any extensions, renewals or reinvestments thereof, so long as the aggregate
amount of all Investments pursuant to this clause (d) is not increased at
any time above the amount of such Investments existing on the date hereof;


 


(d)           Investments received in
connection with the bankruptcy or reorganization of suppliers or customers and
in settlement of delinquent obligations of, and other disputes with, customers
arising in the ordinary course of business or upon foreclosure with respect to
any secured Investment or other transfer of title with respect to any secured
Investment;


 


(e)           Investments of any Loan
Party in another Loan Party and of any Subsidiary that is not a Loan Party into
another Subsidiary that is not a Loan Party;


 


(f)            the purchase or other
acquisition of all of the Equity Interests in, or all or substantially all of
the property of, any Person that, upon the consummation thereof, will be
wholly-owned directly by the Company or one or more of its wholly-owned
Subsidiaries (including as a result of a merger or consolidation); provided
that, with respect to each purchase or other acquisition made pursuant to this Section 7.02(f):


 


(i)            any such newly-created
or acquired Subsidiary shall comply (as applicable) with the requirements of Section 6.13;


 


(ii)           the lines of business
of the Person to be (or the property of which is to be) so purchased or
otherwise acquired shall be reasonably related to the lines of business as one
or more of the principal businesses of the Company and its Subsidiaries in the
ordinary course (except for companies acquired to serve as a holding company
for tax purposes);


 


(iii)          (A) immediately
before and immediately after giving pro forma effect to any such purchase or
other acquisition, no Default shall have occurred and be continuing and (B) immediately
after giving effect to such purchase or other acquisition, the Company and its
Subsidiaries shall be in pro forma compliance with all of the covenants set
forth in Section 7.11, such compliance to be determined on the
basis of the financial information most recently delivered to the
Administrative Agent and the Lenders pursuant to Section 6.01(a) or
(b) as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby, and the
Company shall deliver to the Administrative Agent a Compliance Certificate
demonstrating such compliance if the total cash and noncash consideration
(including the fair market value of all Equity Interests issued or transferred
to the sellers thereof, all indemnities, earnouts and other contingent payment
obligations to, and the aggregate amounts paid or to be paid under noncompete,
consulting and other affiliated agreements with, the sellers 


 


74

















 


thereof, all write-downs of property and reserves for
liabilities with respect thereto and all assumptions of debt, liabilities and
other obligations in connection therewith) paid by or on behalf of the Company
and its Subsidiaries for any such purchase or other acquisition exceeds
$100,000,000; and


 


(iv)          the Company shall have
delivered to the Administrative Agent and each Lender, prior to the date on
which any such purchase or other acquisition is to be consummated, a
certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent, certifying that all of the
requirements set forth in this clause (f) have been satisfied or will be
satisfied on or prior to the consummation of such purchase or other
acquisition;


 


(g)           Investments
constituting non-cash proceeds of sales, transfers and other dispositions of
assets to the extent permitted by Section 7.05;


 


(h)           Investments permitted
under Section 7.06;


 


(i)            Investments of a
Subsidiary acquired after the Closing Date or of any Person merged into the
Company or merged or consolidated with a Subsidiary in accordance with Section 7.04
after the Closing Date to the extent that such Investments were not made in
contemplation of or in connection with such acquisition, merger or
consolidation and were in existence on the date of such acquisition, merger or
consolidation;


 


(j)            the creation of new
subsidiaries so long as they comply with Section 6.13 (to the
extent applicable);


 


(k)           contingent obligations
with respect to any Swap Contract, or hedging agreements otherwise permitted by
this Agreement;


 


(l)            Investments
constituting inter-company Indebtedness to the extent permitted under Section 7.03;


 


(m)          prepaid expenses in the
ordinary course of business;


 


(n)           Investments (including
Investments in joint ventures or similar entities that do not constitute
wholly-owned Subsidiaries and including Investments by Loan Parties in non-Loan
Parties), as valued at the fair market value of such Investment at the time
each such Investment is made, in an amount that, at the time such Investment is
made, would not exceed, together with all other Investments made after the date
hereof pursuant to this Section 7.02(n), the sum of $50,000,000
plus an amount equal to any repayments, interest, returns, profits,
distributions, income and similar amounts actually received in cash in respect
of any Investment made after the date hereof pursuant to this Section 7.02(n);
and


 


(o)           Intercompany
Investments by any Loan Party in any Subsidiary that is not a Loan Party; provided
that all amounts with respect to such Investment are loaned, dividended or
otherwise paid by such Person to any Loan Party within one week of such
Investment.


 


7.03        Indebtedness.  Create, incur, assume or suffer to exist any
Indebtedness, except:


 


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(a)           Indebtedness under the
Loan Documents;


 


(b)           Indebtedness
outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that
the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;


 


(c)           Guarantees of the
Company or any Subsidiary  in respect of
Indebtedness otherwise permitted hereunder of the Company or any wholly-owned
Subsidiary;


 


(d)           obligations (contingent
or otherwise) of the Company or any Subsidiary existing or arising under any
Swap Contract; provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose
of directly mitigating risks associated with liabilities, commitments,
investments, assets, or property held or reasonably anticipated by such Person,
or changes in the value of securities issued by such Person, and not for
purposes of speculation or taking a “market view;” and (ii) such Swap
Contract does not contain any provision exonerating the non-defaulting party
from its obligation to make payments on outstanding transactions to the
defaulting party;


 


(e)           Indebtedness in respect
of capital leases, Synthetic Lease Obligations and purchase money obligations
for fixed or capital assets within the limitations set forth in Section 7.01(d);


 


(f)            Indebtedness with respect to any Investment
permitted under Section 7.02(o) and unsecured Indebtedness of
any Subsidiary that is not a Loan Party owed to any Loan Party or any other
Subsidiary that is not a Loan Party; provided that all such Indebtedness
of a Subsidiary that is not a Loan Party owed to a Loan Party (other than
Indebtedness in connection with Investments permitted pursuant to Sections
7.02(c), (f) and (o)) shall not exceed $50,000,000
outstanding at any time plus the amount of any Indebtedness permitted
and available pursuant to Section 7.03(g)(ii); and


 


(g)           Indebtedness (i) of
the Loan Parties without limit and (ii) of Subsidiaries that are not Loan
Parties in an aggregate principal amount not to exceed $100,000,000 at any time
outstanding.


 


The maximum amount of Indebtedness that the
Company or any Subsidiary may incur pursuant to this Section 7.03
shall not be deemed to be exceeded solely as the result of fluctuations in the
exchange rates of currencies and the amount of any Indebtedness denominated in
a currency other than Dollars shall be calculated by converting such
Indebtedness to Dollars at the exchange rate prevailing at the time such
Indebtedness is incurred.


 


7.04        Fundamental Changes.  Merge, dissolve, liquidate, consolidate,
combine or amalgamate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person,
except that, so long as no Default exists or would result therefrom:


 


76

















 


(a)           any Subsidiary may
merge with the Company; provided that the Company shall be the
continuing or surviving Person;


 


(b)           any Subsidiary or any
other Person may be merged, amalgamated or consolidated with or into any one or
more Subsidiaries, provided that (i) a Subsidiary shall be the continuing
or surviving Person or (ii) if any wholly-owned, directly or indirectly,
Subsidiary is merging, consolidating, combining or amalgamating with or into
another Subsidiary, the continuing or surviving Person shall, immediately after
such merger, amalgamation or combination be (whether at the time or as a result
of the transaction) a wholly-owned, direct or indirect, Subsidiary;


 


(c)           any Subsidiary may
Dispose of all or any part of its assets (whether as a contribution to capital,
dividend, upon voluntary liquidation or otherwise) to the Company or to another
Subsidiary; provided that (i) if the transferor in such a
transaction is a wholly-owned, directly or indirectly, Subsidiary, then the
transferee must either be the Company or a wholly-owned, directly or
indirectly, Subsidiary (whether at the time or as a result of the transfer) and
(ii) if the transferor in such transaction is a Loan Party then the
transferee must be a Loan Party unless such transaction is otherwise permitted
under Section 7.05(c); and


 


(d)           any Subsidiary which is
not a Subsidiary Guarantor may liquidate or dissolve if the Company determines
in good faith that such liquidation or dissolution is in the best interests of
the Company and is not materially disadvantageous to the Lenders.


 


7.05        Dispositions.  Make any Disposition or enter into any
agreement to make any Disposition, except:


 


(a)           the Company and any
Subsidiary may Dispose of (i) obsolete or surplus equipment, vehicles,
inventory and other assets in the ordinary course of business and (ii) Permitted
Investments;


 


(b)           the Company and any
Subsidiary make Dispositions of other assets (other than accounts receivable)
for fair value, provided that:


 


(i)            with respect to any
Disposition pursuant to this clause (b) for a purchase price in excess of
$50,000,000, the Company or a Subsidiary shall receive not less than 75% of
such consideration in the form of cash or Permitted Investments; provided
that any liabilities of the Company or such Subsidiary (as shown on the Company’s
or such Subsidiary’s most recent balance sheet provided hereunder or in the
footnotes thereto) that are assumed by the transferee with respect to the
applicable Disposition and for which the Company and all of the Subsidiaries
shall have been validly released by all applicable creditors in writing shall
be deemed to be cash under this clause (i);


 


(ii)           with respect to any
such Disposition (or series of related Dispositions), the Company shall be in
compliance, on a pro forma basis after giving effect to such Disposition, with
the covenant set forth in Section 7.11, as such covenant is
recomputed as at the last day of the most recently ended test period under such
Section as if such Disposition had occurred on the first day of such test
period;


 


77

















 


(iii)          the amount of any such
Disposition under this Section 7.05(b) shall not exceed
$250,000,000 in the aggregate with all other Dispositions made after the date
hereof under this Section 7.05(b); and


 


(iv)          immediately prior to the
occurrence of and after giving effect to any such Disposition, no Default or
Event of Default shall have occurred and be continuing.


 


(c)           any Subsidiary may make
Dispositions of assets to the Company or to any Subsidiary; provided
that if the transferor of such property is a Subsidiary Guarantor, the
transferee must either be the Company or a Subsidiary Guarantor; provided
further that with respect to any such Dispositions to Subsidiaries that
are not Subsidiary Guarantors by a Subsidiary Guarantor:


 


(i)            such Disposition shall
be for fair value; and


 


(ii)           immediately prior to
the occurrence of and after giving effect to any such Disposition, no Default
or Event of Default shall have occurred and be continuing;


 


(d)           the Company and any
Subsidiary may effect any transaction permitted by Sections 7.02, 7.04
or 7.06;


 


(e)           the Company and any of
its Subsidiaries may Dispose of, sell or discount without recourse in a manner
consistent with past practices accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof;


 


(f)            the Company and any of
its Subsidiaries may lease, sublease, license or sublicense (on a non-exclusive
basis with respect to any intellectual property) real, personal or intellectual
property in the ordinary course of business;


 


(g)           Dispositions of
property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;


 


(h)           Dispositions of
Investments in joint ventures to the extent required by, or made pursuant to
customary buy/sell arrangements between, the joint venture parties set forth in
joint venture arrangements and similar binding arrangements; and


 


(i)            The Company may
Dispose of all or substantially all of its Equity Interests in Tickle, Inc.,
a Delaware corporation, or Tickle, Inc. may sell all or substantially all
of its assets; provided that any proceeds received by the Company in
excess of $10,000,000 shall be subject to clause (b) above.


 


7.06        Restricted Payments.  Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:


 


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(a)           each Subsidiary may
make Restricted Payments to the Company, the Subsidiary Guarantors and any
other Person that owns an Equity Interest in such Subsidiary, ratably according
to their respective holdings of the type of Equity Interest in respect of which
such Restricted Payment is being made;


 


(b)           the Company and each
Subsidiary may declare and make dividend payments or other distributions
payable solely in the common stock or other common Equity Interests of such
Person;


 


(c)           the Company and each
Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by
it with the proceeds received from the substantially concurrent issue of new
shares of its common stock or other common Equity Interests; and


 


(d)           the Company may
purchase, redeem or otherwise acquire Equity Interests issued by it or pay
dividends on its Equity Interests; provided that, both before and after
giving effect thereto, the Company and its Subsidiaries shall be in pro  forma
compliance with all of the covenants set forth in Section 7.11,
such compliance to be determined on the basis of the financial information most
recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or
(b) as though such purchase or other acquisition had been
consummated as of the first day of the fiscal period covered thereby.


 


7.07        Change in Nature of
Business.  Engage in any material
line of business substantially different from those lines of business conducted
by the Company and its Subsidiaries on the date hereof or any business related
or incidental thereto.


 


7.08        Transactions with
Affiliates.  Enter into any
transaction of any kind with any Affiliate of the Company, whether or not in
the ordinary course of business, other than on fair and reasonable terms
substantially as favorable to the Company or such Subsidiary as would be
obtainable by the Company or such Subsidiary at the time in a comparable arm’s
length transaction with a Person other than an Affiliate or (b) (x) customary
fees to, and indemnifications of, directors of the Loan Parties and their
respective Subsidiaries in the ordinary course of business and (y) compensation,
bonuses and indemnification arrangements and benefit plans for officers and
employees of the Loan Parties and their respective Subsidiaries in the ordinary
course of business.


 


7.09        Burdensome Agreements.  Enter into any Contractual Obligation (other
than this Agreement or any other Loan Document) that limits the ability (a) of
any Subsidiary to make Restricted Payments to the Company or any Subsidiary
Guarantor or to otherwise transfer property to the Company or any Subsidiary
Guarantor, (b) of any Subsidiary to Guarantee the Indebtedness of the
Company or (c) of the Company or any Subsidiary to create, incur, assume
or suffer to exist Liens on property of such Person; provided that the
foregoing shall not apply to Contractual Obligations which (i) are customary
provisions in joint venture agreements and other similar agreements applicable
to joint ventures permitted under Section 7.02 and applicable
solely to such joint venture entered into in the ordinary course of business; (ii) represent
Indebtedness of Subsidiaries that are not Loan Parties and Indebtedness of Loan
Parties acquired after the Closing Date (but only Contractual Obligations
relating to such new Loan Party and its Subsidiaries and not incurred in
contemplation of such acquisition); (iii) are customary 


 


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restrictions on leases,
subleases, licenses or sale agreements otherwise permitted hereby so long as
such restrictions relate to the assets or entities sold subject thereto; (iv) comprise
restrictions imposed by any agreement relating to secured Indebtedness
permitted pursuant to Section 7.03 to the extent that such
restrictions apply only to the property or assets securing, or the subject of,
such Indebtedness or, applicable, to the Subsidiaries incurring or guaranteeing
such Indebtedness; (v) are customary provisions restricting subletting or
assignment of any lease governing a leasehold interest of the Company or any
Subsidiary; (vi) are customary provisions restricting assignment of any
agreement entered into in the ordinary course of business and not otherwise
prohibited hereunder; and (vii) are restrictions on cash or other deposits
imposed by customers under contracts entered into in the ordinary course of
business and not otherwise prohibited hereunder.


 


7.10        Use of Proceeds.  Use the proceeds of any Credit Extension,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or carry margin stock (within the meaning of Regulation
U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such
purpose.


 


7.11        Financial Covenants.


 


(a)           Consolidated
Interest Coverage Ratio.  Permit the
Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of the
Company to be less than 3.00:1.


 


(b)           Consolidated
Leverage Ratio.  Permit the
Consolidated Leverage Ratio at any time during any period of four fiscal
quarters of the Company to be greater than 2.50:1.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


8.01        Events of Default.  Any of the following shall constitute an
Event of Default:


 


(a)           Non-Payment.  Any Borrower or any other Loan Party fails to
pay (i) when and as required to be paid herein, and in the currency
required hereunder, any amount of principal of any Loan or any L/C Obligation,
or (ii) within three Business Days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within
five Business Days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or


 


(b)           Specific Covenants.  (a) The Company fails to perform or
observe any term, covenant or agreement contained in any of Section 6.01,
6.02(a) through (d), 6.05, 6.10, 6.11
or 6.13 or Article VII, or (b) any Subsidiary Guarantor fails to perform or observe any
term, covenant or agreement contained in Article IV of the Subsidiary
Guaranty to the extent such term, covenant or agreement requires such Subsidiary
Guarantor to comply with and be bound by the Sections listed in clause (a);
or


 


(c)           Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
on its part to be performed or observed contained in (a) Sections
6.03(a), (b) and (c) and such failure continues for
5 days, or 


 


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(b) any Loan Document and such failure continues
for 30 days after the earlier of (i) receipt by such Person of written
notice from the Administrative Agent or any Lender of such failure and (ii) the
time at which such Person or any Responsible Officer knew or became aware of
such failure; or


 


(d)           Representations and
Warranties.  Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Company or any other Loan Party herein, in any other Loan Document, shall be
incorrect in any material respect (other than representations qualified by
materiality, which shall be true and correct in all respects) when made or
deemed made; or


 


(e)           Cross-Default.  (i) The Company or any Subsidiary (A) fails
to make any payment when due and beyond the applicable grace period (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise) in
respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts owing
to all creditors under any combined or syndicated credit arrangement) of more
than the $25,000,000 outstanding, or (B) fails to observe or perform any
other agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs (other than with respect to Indebtedness
consisting of hedge agreements or Swap Contracts, termination events or
equivalent events pursuant to such hedge agreements or Swap Contracts), the
effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary
or beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due or to be repurchased, prepaid, defeased or redeemed
prior to its stated maturity, or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be
demanded; or (ii) there occurs under any Swap Contract an Early
Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which the Company or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Company or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Company or such Subsidiary as a
result thereof is greater than the $25,000,000 outstanding; or


 


(f)            Insolvency
Proceedings, Etc.  Any Loan Party or any
of its material Subsidiaries institutes or consents to the institution of any
proceeding under any Debtor Relief Law, or makes an assignment for the benefit
of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
is appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for 60 calendar days; or any
proceeding under any Debtor Relief Law relating to any such Person or to all or
any material part of its property is instituted without the consent of such
Person and 


 


81

















 


continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding; or


 


(g)           Inability to Pay
Debts; Attachment.  (i) Any Loan
Party or any of its material Subsidiaries becomes unable or admits in writing
its inability or fails generally to pay its debts as they become due, or (ii) any
writ or warrant of attachment or execution or similar process is issued or
levied against all or any material part of the property of any such Person and
is not released, vacated or fully bonded within 30 days after its issue or
levy; or


 


(h)           Judgments.  There is entered against the Company or any
Subsidiary (i) one or more final judgments or orders for the payment of
money in an aggregate amount (as to all such judgments or orders) exceeding
$25,000,000 (to the extent not covered by independent third-party insurance as
to which the insurer does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 10 consecutive
days during which a stay of enforcement of such judgment, by reason of a
pending appeal or otherwise, is not in effect; or


 


(i)            ERISA.  (i) An ERISA Event occurs with respect
to a Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Company under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of $1,000,000, or (ii) the Company or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of
$1,000,000; or


 


(j)            Invalidity of Loan
Documents.  Any provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as
expressly permitted hereunder or thereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party contests
in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it
has any or further liability or obligation under any Loan Document, or revokes,
terminates or rescinds any provision of
any Loan Document; or


 


(k)           Change of Control.  There occurs any Change of Control.


 


8.02        Remedies Upon Event of
Default.  If any Event of Default
occurs and is continuing, the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, take any or all of the
following actions:


 


(a)           declare the commitment
of each Lender to make Loans and any obligation of the L/C Issuer to make L/C
Credit Extensions to be terminated, whereupon such commitments and obligation
shall be terminated;


 


(b)           declare the unpaid
principal amount of all outstanding Loans, all interest accrued and unpaid
thereon, and all other amounts owing or payable hereunder or under any 


 


82

















 


other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrowers;


 


(c)           require that the
Company Cash Collateralize the L/C Obligations (in an amount equal to the then
Outstanding Amount thereof); and


 


(d)           exercise on behalf of
itself, the Lenders and the L/C Issuer all rights and remedies available to it,
the Lenders and the L/C Issuer under the Loan Documents;


 


provided that upon the occurrence of an actual
or deemed entry of an order for relief with respect to any Borrower under the
Bankruptcy Code of the United States, the obligation of each Lender to make
Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Company to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.


 


8.03        Application of Funds.  After the exercise of remedies provided for
in Section 8.02 (or after the Loans have automatically become
immediately due and payable and the L/C Obligations have automatically been
required to be Cash Collateralized as set forth in the proviso to Section 8.02),
any amounts received on account of the Obligations shall be applied by the
Administrative Agent in the following order:


 


First, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and other amounts
(including reasonable fees, charges and disbursements of counsel to the
Administrative Agent and amounts payable under Article III) payable
to the Administrative Agent in its capacity as such;


 


Second, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than
principal, interest and Letter of Credit Fees) payable to the Lenders and the
L/C Issuer (including reasonable fees, charges and disbursements of counsel to
the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be employees of
any Lender or the L/C Issuer) and amounts payable under Article III),
ratably among them in proportion to the respective amounts described in this clause
Second payable to them;


 


Third, to payment of that portion of the
Obligations constituting accrued and unpaid Letter of Credit Fees and interest
on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders
and the L/C Issuer in proportion to the respective amounts described in this clause
Third payable to them;


 


Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings,
ratably among the Lenders and the L/C Issuer in proportion to the respective
amounts described in this clause Fourth held by them;


 


Fifth, to the Administrative Agent for the
account of the L/C Issuer, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit; and


 


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Last, the balance, if any, after all of the
Obligations have been paid in full (other than contingent indemnification
obligations), to the Company or as otherwise required by Law.


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Fifth above shall be applied to satisfy
drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash
Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the
order set forth above.


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01        Appointment and Authority.


 


Each of the
Lenders and the L/C Issuer hereby irrevocably appoints Bank of America to act
on its behalf as the Administrative Agent hereunder and under the other Loan
Documents and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are
reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and neither any Borrower
nor any other Loan Party shall have rights as a third party beneficiary of any
of such provisions other than Section 9.06.


 


9.02        Rights as a Lender.  The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a
Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual
capacity.  Such Person and its Affiliates
may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
the Borrowers or any Subsidiary or other Affiliate thereof as if such Person
were not the Administrative Agent hereunder and without any duty to account
therefor to the Lenders.


 


9.03        Exculpatory Provisions.  The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Loan Documents.  Without limiting the
generality of the foregoing, the Administrative Agent:


 


(a)           shall not be subject to
any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing;


 


(b)           shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the other
Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be expressly provided for herein or in the other Loan
Documents); provided that the Administrative Agent shall not be required
to take any action that, in its opinion or the opinion of its counsel, may
expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and


 


84

















 


(c)           shall not, except as
expressly set forth herein and in the other Loan Documents, have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any of the Borrowers or any of their respective Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 10.01 and 8.02) or (ii) in
the absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Company, a Lender or the
L/C Issuer.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


9.04        Reliance by Administrative
Agent.


 


The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed
by it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Company), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.


 


9.05        Delegation of Duties.  The Administrative Agent may perform any and
all of its duties and exercise its rights and powers hereunder or under any
other Loan Document by or through any one or more sub-agents appointed by the
Administrative Agent.  The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and 


 


85

















 


powers by or through
their respective Related Parties.  The
exculpatory provisions of this Article shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.


 


9.06        Resignation of
Administrative Agent.  The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Company. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, with the consent of the Company (which consent will not
be reasonably withheld or delayed), to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States.  If no
such successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Company and the Lenders that
no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and
the L/C Issuer directly, until such time as the Required Lenders and the
Company appoint a successor Administrative Agent as provided for above in this
Section.  Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from all of its duties and obligations
as the administrative agent hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Company to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Company and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


Any
resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer and Swing Line Lender, (b) the retiring
L/C Issuer and Swing Line Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Loan Documents,
and (c) the successor L/C Issuer shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.


 


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9.07        Non-Reliance on
Administrative Agent and Other Lenders. 
Each Lender and the L/C Issuer acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender or any
of their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement.  Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon
the Administrative Agent or any other Lender or any of their Related Parties
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.


 


9.08        No Other
Duties, Etc.  Anything herein
to the contrary notwithstanding, none of the Bookrunners or Arrangers listed on
the cover page hereof shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.


 


9.09        Administrative Agent May File
Proofs of Claim.  In case of the
pendency of any proceeding under any Debtor Relief Law or any other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective
of whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on any Borrower)
shall be entitled and empowered, by intervention in such proceeding or
otherwise


 


(a)           to file and prove a
claim for the whole amount of the principal and interest owing and unpaid in
respect of the Loans, L/C Obligations 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, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the L/C Issuer and the
Administrative Agent and their respective agents and counsel and all other
amounts due the Lenders, the L/C Issuer and the Administrative Agent under Sections
2.03(i) and (j), 2.09 and 10.04) allowed in such
judicial proceeding; and


 


(b)           to collect and receive
any monies or other property payable or deliverable on any such claims and to
distribute the same;


 


and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender and the L/C Issuer to make such payments to the Administrative Agent
and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections
2.09 and 10.04.


 


Nothing
contained herein shall be deemed to authorize the Administrative Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of 


 


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any Lender or the L/C Issuer to authorize the Administrative Agent to
vote in respect of the claim of any Lender or the L/C Issuer in any such
proceeding.


 


9.10        Guaranty Matters.  The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent, at its option and in its discretion, to
release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder.


 


Upon request
by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 9.10.


 


ARTICLE X.

MISCELLANEOUS


 


10.01      Amendments, Etc.  No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent to any departure by
the Company or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Company or the applicable Loan
Party, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided that no such
amendment, waiver or consent shall:


 


(a)           waive any condition set
forth in Section 4.01(a) without the written consent of each
Lender;


 


(b)           extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender;


 


(c)           postpone any date fixed
by this Agreement or any other Loan Document for any payment of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder
or under any other Loan Document without the written consent of each Lender
directly affected thereby;


 


(d)           reduce the principal
of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (v) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document,
or change the manner of computation of any financial ratio (including any
change in any applicable defined term) used in determining the Applicable Rate
that would result in a reduction of any interest rate on any Loan or any fee
payable hereunder without the written consent of each Lender directly affected
thereby; provided that only the consent of the Required Lenders shall be
necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of any Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to
reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee
payable hereunder;


 


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(e)           change Section 2.13
or Section 8.03 in a manner that would alter the pro rata sharing
of payments required thereby without the written consent of each Lender;


 


(f)            amend Section 1.06
or the definition of “Alternative Currency” without the written consent of each
Lender;


 


(g)           change any provision of
this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination
or grant any consent hereunder without the written consent of each Lender; or


 


(h)           release the Company
from the Company Guaranty or all or substantially all of the value of the
Subsidiary Guaranty without the written consent of each Lender;


 


and provided,
further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any
Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document; and (iv) the
Fee Letter may be amended, or rights or privileges thereunder waived, in a
writing executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


If any Lender does not consent to a proposed
amendment, waiver, consent or release with respect to any Loan Document that
requires the consent of each Lender and that has been approved by the Required
Lenders, the Company may replace such non-consenting Lender in accordance with Section 10.13;
provided that such amendment, waiver, consent or release can be effected
as a result of the assignment contemplated by such Section (together with
all other such assignments required by the Company to be made pursuant to this
paragraph).


 


10.02      Notices; Effectiveness;
Electronic Communication.


 


(a)           Notices Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)            if to a Borrower, the
Administrative Agent, the L/C Issuer or the Swing Line Lender, to the address,
telecopier number, e-mail address or telephone number specified for such Person
on Schedule 10.02; and


 


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(ii)           if to any other Lender,
to the address, telecopier number, e-mail address or telephone number specified
in its Administrative Questionnaire.


 


Notices sent
by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by
telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have
been given at the opening of business on the next business day for the
recipient).  Notices delivered through
electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).


 


(b)           Electronic
Communications.  Notices and other
communications to the Lenders and the L/C Issuer hereunder may be delivered or
furnished by electronic communication (including e-mail and Internet or
intranet websites) pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices to any Lender or
the L/C Issuer pursuant to Article II if such Lender or the L/C
Issuer, as applicable, has notified the Administrative Agent that it is
incapable of receiving notices under such Article by electronic
communication.  The Administrative Agent
or the Company may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.


 


Unless the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement); provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.


 


(c)           The Platform.  THE PLATFORM IS PROVIDED “AS IS” AND “AS
AVAILABLE.”  THE AGENT PARTIES (AS
DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER
MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR
ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER
MATERIALS OR THE PLATFORM.  In no event
shall the Administrative Agent or any of its Related Parties (collectively, the
“Agent Parties”) have any liability to any Borrower, any Lender, the L/C
Issuer or any other Person for losses, claims, damages, liabilities or expenses
of any kind (whether in tort, contract or otherwise) arising out of any
Borrower’s or the Administrative Agent’s transmission of Borrower Materials
through the Internet except to the extent that such losses, claims, damages,
liabilities or expenses are 


 


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determined by a court of competent jurisdiction by a
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent Party; provided that in no event shall
any Agent Party have any liability to any Borrower, any Lender, the L/C Issuer
or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).  The Administrative Agent will use
commercially reasonable efforts to notify any Person that is provided access to
Borrower Materials that such Person is bound by the confidentiality provisions
set forth in Section 10.07.


 


(d)           Change of Address,
Etc.  Each of the Company, the other
Loan Parties, the Administrative Agent, the L/C Issuer and the Swing Line
Lender may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto.  Each other Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the Company, the Administrative Agent, the L/C Issuer and the
Swing Line Lender.  In addition, each Lender
agrees to notify the Administrative Agent from time to time to ensure that the
Administrative Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and e-mail address to which notices and
other communications may be sent and (ii) accurate wire instructions for
such Lender.


 


(e)           Reliance by
Administrative Agent, L/C Issuer and Lenders.  The Administrative Agent, the L/C
Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Committed Loan Notices and Swing Line Loan Notices)
purportedly given by or on behalf of any Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other form of notice specified herein, or (ii) the
terms thereof, as understood by the recipient, varied from any confirmation
thereof.  The Company shall indemnify the
Administrative Agent, the L/C Issuer, each Lender and the Related Parties of
each of them from all losses, costs, expenses and liabilities resulting from
the reliance by such Person on each notice purportedly given by or on behalf of
any Borrower other than as the result of the gross negligence or willful
misconduct of any such Person.  All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


10.03      No Waiver; Cumulative
Remedies.  No failure by any Lender,
the L/C Issuer or the Administrative Agent to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.  The rights, remedies, powers
and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


10.04      Expenses; Indemnity; Damage
Waiver.


 


(a)           Costs and Expenses.  The Company shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent and its Affiliates
(including the reasonable fees, charges and disbursements of up to one counsel
for the Administrative Agent, Citibank, N.A. and the Arrangers), in connection
with the syndication of the credit facilities provided for 


 


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herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
L/C Issuer in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, any
Lender or the L/C Issuer (including the fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the L/C Issuer) in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the
other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.


 


(b)           Indemnification by
the Company.  The Company shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender and
the L/C Issuer, and each Related Party of any of the foregoing Persons (each
such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses (including the fees, charges and disbursements of any counsel
for any Indemnitee; provided that each Lender (whether such Lender is
the Administrative Agent or the L/C Issuer) and its Related Parties shall be
limited to reimbursement for only one counsel) incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by any Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent
(and any sub-agent thereof) and its Related Parties only, the administration of
this Agreement and the other Loan Documents, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not
strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its
Subsidiaries, or (iv) any actual claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by the Company or any
other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Company or any
other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the
Company or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent
jurisdiction.  No Indemnitee will consent
to any settlement of any claim made under this Section 10.04
without the consent of the Company (which consent will not be unreasonably
withheld and delayed)


 


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(c)           Reimbursement by
Lenders.  To the extent that the Loan
Parties for any reason fail to indefeasibly pay any amount required under subsection (a) or (b) of
this Section to be paid by the Company to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, but without affecting the Company’s reimbursement obligations
hereunder, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent) or the
L/C Issuer in its capacity as such, or against any Related Party of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) or L/C
Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)           Waiver of Consequential
Damages, Etc.  To the fullest extent
permitted by applicable law, no Borrower shall assert, and hereby waives, any
claim against any Indemnitee, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the
use of the proceeds thereof.  No
Indemnitee referred to in subsection (b) above shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission
systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby provided that such Indemnitee took
commercially reasonable efforts to safeguard such information of other
materials, other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnitee as determined by a final
nonappealable judgment of a court of competent jurisdiction.


 


(e)           Payments.  All amounts due under this Section shall
be payable not later than ten Business Days after demand therefor.


 


(f)            Survival.  The agreements in this Section shall
survive the resignation of the Administrative Agent, the L/C Issuer and the
Swing Line Lender, the replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


10.05      Payments Set Aside.  To the extent that any payment by or on
behalf of any Borrower is made to the Administrative Agent, the L/C Issuer or
any Lender, or the Administrative Agent, the L/C Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the L/C Issuer or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to
the extent of such recovery, the obligation or part 


 


93

















 


thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such setoff had not occurred,
and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or payment.  The obligations of the Lenders and the L/C
Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


10.06      Successors and Assigns.


 


(a)           Successors and
Assigns Generally.  The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except
that no Borrower may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Administrative
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with
the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this Section or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and,
to the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)           Assignments by
Lenders.  Any Lender may at any time
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans (including for purposes of this subsection (b), participations in
L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that any such assignment shall be subject to the following conditions:


 


(i)            Minimum Amounts.


 


(A)          in the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it or in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and


 


(B)           in any case not
described in subsection (b)(i)(A) of this Section, the aggregate
amount of the Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if “Trade



 


94

















 


Date” is specified in the Assignment and Assumption,
as of the Trade Date, shall not be less than $5,000,000  unless
each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Company otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided that concurrent
assignments to members of an Assignee Group and concurrent assignments from
members of an Assignee Group to a single assignee (or to an assignee and
members of its Assignee Group) will be treated as a single assignment for
purposes of determining whether such minimum amount has been met.


 


(ii)           Proportionate
Amounts.  Each partial assignment
shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans
or the Commitment assigned, except that this clause (ii) shall not
apply to the Swing Line Lender’s rights and obligations in respect of Swing Line
Loans;


 


(iii)          Required Consents.  No consent shall be required for any
assignment except to the extent required by subsection (b)(i)(B) of
this Section and, in addition:


 


(A)          the consent of the
Company (such consent not to be unreasonably withheld or delayed) shall be
required unless (1) an Event of Default has occurred and is continuing at
the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;


 


(B)           the consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed)
shall be required if such assignment is to a Person that is not a Lender, an
Affiliate of such Lender or an Approved Fund with respect to such Lender;


 


(C)           the consent of the L/C
Issuer (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment that increases the obligation of the assignee to
participate in exposure under one or more Letters of Credit (whether or not
then outstanding); and


 


(D)          the consent of the Swing
Line Lender (such consent not to be unreasonably withheld or delayed) shall be
required for any assignment.


 


(iv)          Assignment and
Assumption.  The parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the amount,
if any, required as set forth in Schedule 10.06; provided that
the Administrative Agent may, in its sole discretion, elect to waive such
processing and recordation fee in the case of any assignment.  The assignee, if it is not a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire.


 


(v)           No Assignment to
Company.  No such assignment shall be
made to the Company or any of the Company’s Affiliates or Subsidiaries.


 


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(vi)          No Assignment to
Natural Persons.  No such assignment
shall be made to a natural person.


 


(vii)         No Assignment Resulting in Additional
Indemnified Taxes.  No such assignment shall be made to any
Person that, through its Lending Offices, is not capable of lending the
applicable Alternative Currencies to the relevant Borrowers without the
imposition of any additional Indemnified Taxes.


 


Subject to
acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement other than pursuant to Section 10.07
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender’s rights and obligations under this Agreement, such Lender shall cease
to be a party hereto) but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, and 10.04 with respect to facts and
circumstances occurring prior to the effective date of such assignment.  Upon request, each Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender.  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.


 


(c)           Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrowers, shall maintain at the Administrative
Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Borrowers and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)           Participations.  Any Lender may at any time, without the
consent of, or notice to, any Borrower or the Administrative Agent, sell
participations to any Person (other than a natural person or the Company or any
of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swing Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent, the Lenders
and the L/C Issuer shall continue to deal solely and directly with such Lender
in connection with such Lender’s rights and obligations under this Agreement.


 


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Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement
and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to Section 10.01
that affects such Participant.  Subject
to subsection (e) of this Section, each Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05  to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 10.08  as though it were a Lender; provided that such
Participant agrees to be subject to Section 2.13 as though it were
a Lender and shall be subject to Section 10.07.


 


(e)           Limitations upon
Participant Rights.  A Participant
shall not be entitled to receive any greater payment under Section 3.01
or 3.04  than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with
the Company’s prior written consent.  A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 3.01 unless the Company is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as
though it were a Lender.


 


(f)            Certain Pledges.  Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.


 


(g)           Electronic Execution
of Assignments.  The words “execution,”
“signed,” “signature,” and words of like import in any Assignment and
Assumption shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures
and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.


 


(h)           Resignation as L/C
Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, (i) upon
30 days’ notice to the Company and the Lenders, resign as L/C Issuer and/or (ii) upon
30 days’ notice to the Company, resign as Swing Line Lender.  In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Company shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder,
subject to such Lender’s acceptance of such appointment; provided that
no failure by the Company to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing 


 


97

















 


Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of
its resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Committed Loans
or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Committed Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.04(c).  Upon the appointment of a successor L/C Issuer
and/or Swing Line Lender, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor
L/C Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


10.07      Treatment of Certain
Information; Confidentiality.  Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives who need to know such Information (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential in accordance with this Section and it is agreed
to and understood that the Agent, Lender and the L/C Issuer shall be
responsible for (and liable to the Company for) any breach of this Section by
any such Person), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), in
which case such Person thereby requested agrees to use commercially reasonable
efforts to inform the Company promptly following such request and, to the extent practical, will use commercially reasonable efforts to
notify (unless such notice is prohibited by law or regulation) the Company
prior to such disclosure (other than with respect to routine regulatory
requests), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, in which case such Person thereby
requested agrees to use commercially reasonable efforts to inform the Company
promptly following such request and, to
the extent practical, will use
commercially reasonable efforts to notify (unless such notice is prohibited by
law or regulation) the Company prior to such disclosure (other than with
respect to routine matters), (d) to any other party hereto (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement; provided that such assignee, Participant, prospective
assignee or prospective Participant agrees to use the information solely for
evaluating its investment hereunder and is advised of and agrees to be bound by
the provisions of this Section 10.07,  or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to a Borrower and its obligations; provided that such counterparty
agrees to use the Information so 


 


98

















 


disclosed solely with
respect to such transaction and is advised of and agrees to be bound by the
provisions of this Section 10.07, (g) with the consent of the
Company or (h) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Company that is not known to be subject to a confidentiality or similar
agreement with the Company or any of its Subsidiaries.


 


For purposes
of this Section, “Information” means all information received from the
Company or any Subsidiary relating to the Company or any Subsidiary or any of
their respective businesses, other than any such information that is available
to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential
basis prior to disclosure by the Company or any Subsidiary from a Person that
is not known to be subject to a confidentiality or similar agreement with the
Company or any of its Subsidiaries; provided that, in the case of
information received from the Company or any Subsidiary after the date hereof,
such information is clearly identified at the time of delivery as
confidential.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Each of the
Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Company
or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with those
procedures and applicable Law, including Federal and state securities Laws.


 


10.08      Right of Setoff.  If an Event of Default shall have occurred
and be continuing, each Lender, the L/C Issuer and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the L/C Issuer or any such Affiliate to or for the
credit or the account of any Borrower against any and all of the obligations of
such Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such
Lender or the L/C Issuer shall have made any demand under this Agreement or any
other Loan Document and although such obligations of such Borrower  may be contingent or unmatured or are owed
to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the
L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the Company and the Administrative Agent promptly after any such setoff
and application; provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


10.09      Interest Rate Limitation.  Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under
the Loan Documents shall not 


 


99

















 


exceed the maximum rate
of non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative 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 Company. 
In determining whether the interest contracted for, charged, or received
by the Administrative 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 hereunder.


 


10.10      Counterparts; Integration;
Effectiveness.  This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
and any confidentiality agreement entered into prior to the date hereof
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 4.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


10.11      Survival of Representations
and Warranties.  All representations
and warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.


 


10.12      Severability.  If any provision of this Agreement or the
other Loan Documents is held to be illegal, invalid or unenforceable, (a) the
legality, validity and enforceability of the remaining provisions of this
Agreement and the other Loan Documents shall not be affected or impaired
thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the illegal,
invalid or unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


10.13      Replacement of Lenders.  If any Lender requests compensation under Section 3.04,
or if any Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 3.01,
or  if
any Lender 


 


100

















 


is a Defaulting Lender or if any other circumstance exists hereunder
that gives the Company the right to replace a Lender as a party hereto,
then the Company may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 10.06), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that:


 


(a)           the Company shall have
paid (or caused a Subsidiary to pay) to the Administrative Agent the assignment
fee specified in Section 10.06(b);


 


(b)           such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and L/C Advances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts);


 


(c)           in the case of any such
assignment resulting from a claim for compensation under Section 3.04
or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter; and


 


(d)           such assignment does
not conflict with applicable Laws.


 


10.14      Governing Law; Jurisdiction;
Etc.


 


(a)           GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


 


(b)           SUBMISSION TO
JURISDICTION.  EACH BORROWER
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW
YORK CITY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION
OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT A
FINAL 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.  NOTHING IN THIS AGREEMENT
OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY 


 


101

















 


ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)           WAIVER OF VENUE.  EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.


 


(d)           SERVICE OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02.  EACH FOREIGN OBLIGOR HEREBY IRREVOCABLY
APPOINTS THE COMPANY AS ITS AUTHORIZED AGENT TO RECEIVE ON ITS BEHALF SERVICE
OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT AND CONSENTS TO THE
SERVICE OF PROCESS OUT OF ANY SUCH COURTS BY MAILING A COPY THEREOF, BY
REGISTERED MAIL, POSTAGE PREPAID, TO SUCH AGENT IN THE MANNER PROVIDED FOR
NOTICES IN SECTION 10.02, AND AGREES THAT SUCH SERVICE, TO THE
FULLEST EXTENT PERMITTED BY LAW:  (I) SHALL
BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON IT IN ANY SUCH
SUIT, ACTION OR PROCEEDING; AND (II) SHALL BE TAKEN AND HELD TO BE VALID
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO IT.  IF ANY AGENT APPOINTED BY ANY PERSON PARTY
HERETO REFUSES TO ACCEPT SERVICE, SUCH PERSON HEREBY AGREES THAT SERVICE UPON
IT BY MAIL SHALL UPON RECEIPT CONSTITUTE SUFFICIENT NOTICE.  NOTHING HEREIN CONTAINED SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF ANY OTHER PERSON PARTY HERETO TO BRING PROCEEDINGS AGAINST SUCH PARTY
IN THE COURTS OF ANY OTHER JURISDICTION.


 


10.15      Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).  EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS 


 


102

















 


BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.


 


10.16      No Advisory or Fiduciary
Responsibility.  In connection with
all aspects of each transaction contemplated hereby, each Borrower acknowledges
and agrees that: (i) the credit facility provided for hereunder and any
related arranging or other services in connection therewith (including in connection
with any amendment, waiver or other modification hereof or of any other Loan
Document) are an arm’s-length commercial transaction between the Borrowers and
their respective Affiliates, on the one hand, and the Administrative Agent and
the Arrangers, on the other hand, and such Borrower is capable of evaluating
and understanding and understands and accepts the terms, risks and conditions
of the transactions contemplated hereby and by the other Loan Documents
(including any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, the Administrative
Agent and the Arrangers each is and has been acting solely as a principal and
is not the financial advisor, agent or fiduciary, for the Borrowers or any of
their respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) neither the Administrative Agent nor any Arranger has
assumed or will assume an advisory, agency or fiduciary responsibility in favor
of the Borrowers with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver or
other modification hereof or of any other Loan Document (irrespective of
whether the Administrative Agent or any Arranger has advised or is currently
advising any Borrower or any of its Affiliates on other matters) and neither
the Administrative Agent nor any Arranger has any obligation to any Borrower or
any of its Affiliates with respect to the transactions contemplated hereby
except those obligations expressly set forth herein and in the other Loan
Documents; (iv) the Administrative Agent and the Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrowers and their respective
Affiliates, and neither the Administrative Agent nor any Arranger has any
obligation to disclose any of such interests by virtue of any advisory, agency
or fiduciary relationship; and (v) the Administrative Agent and the
Arrangers have not provided and will not provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any
other Loan Document) and the Borrowers have consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed
appropriate.  Each Borrower hereby waives
and releases, to the fullest extent permitted by law, any claims that it may
have against the Administrative Agent and the Arrangers with respect to any
breach or alleged breach of agency or fiduciary duty.


 


10.17      USA PATRIOT Act Notice.  Each Lender that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf
of any Lender) hereby notifies the Borrowers that pursuant to the requirements
of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information
that identifies the Borrowers, which information includes the name and address
of each Borrower and other information that will allow such Lender or the
Administrative Agent, as applicable, to identify such Borrower in accordance
with the Act.


 


10.18      Judgment Currency.  If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into 


 


103

















 


another currency, the
rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment is
given.  The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or the
Lenders hereunder or under the other Loan Documents shall, notwithstanding any
judgment in a currency (the “Judgment Currency”) other than that in
which such sum is denominated in accordance with the applicable provisions of
this Agreement (the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent
of any sum adjudged to be so due in the Judgment Currency, the Administrative
Agent may in accordance with normal banking procedures purchase the Agreement
Currency with the Judgment Currency.  If
the amount of the Agreement Currency so purchased is less than the sum originally
due to the Administrative Agent from any Borrower in the Agreement Currency,
such Borrower agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. 
If the amount of the Agreement Currency so purchased is greater than the
sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower
(or to any other Person who may be entitled thereto under applicable law).


 


104


















 


IN WITNESS WHEREOF,  the parties hereto have caused this Agreement to be duly
executed as of the date first above written.


 


	
   

  	
  MONSTER WORLDWIDE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
        /s/ Timothy T. Yates

  	
   

  
	
   

  	
  Name:

  	
    Timothy T.
  Yates

  	
   

  
	
   

  	
  Title: 

  	
   Executive Vice President

  	
   

  
	
   

  	
   

  	
   & Chief Financial Officer

  	
   

  
						



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
         
  /s/ Steven J. Melicharek

  	
   

  
	
   

  	
  Name:

  	
     Steven J. Melicharek

  	
   

  
	
   

  	
  Title:

  	
     SVP, Senior Credit Products
  Officer

  	
   

  
					



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Lender, L/C Issuer

  
	
   

  	
  and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
         
  /s/ Steven J. Melicharek

  	
   

  
	
   

  	
  Name:

  	
     Steven J. Melicharek

  	
   

  
	
   

  	
  Title:

  	
     SVP, Senior Credit Products
  Officer

  	
   

  
						



 

















	
   

  	
  LASALLE BANK, NATIONAL ASSOCIATION

  
	
   

  	
  as an L/C Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Anthony
  M. Buehler

  	
   

  
	
   

  	
  Name:

  	
  Anthony M. Buehler

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
						



 

















 


	
   

  	
  Citibank, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Ross Levitsky

  	
   

  
	
   

  	
  Name:

  	
  Ross Levitsky

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  	
   

  
						



 

















 


	
   

  	
  JPMorgan Chase Bank N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ Ann B.
  Kerns

  	
   

  
	
   

  	
  Name: 

  	
  Ann B. Kerns

  	
   

  
	
   

  	
  Title: 

  	
  Vice President

  	
   

  
						



 

















	
   

  	
  FIFTH THIRD BANK

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
       /s/ George B.
  Davis

  	
   

  
	
   

  	
  Name: 

  	
  George B. Davis

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
						



 


2

















 


	
   

  	
  KEYBANK CAPITAL MARKETS

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Joseph Markey

  	
   

  
	
   

  	
  Name: 

  	
  Joseph Markey

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
						



 


3

















 


	
   

  	
  TORONTO DOMINION (TEXAS) LLC

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Masood Fikree

  	
   

  
	
   

  	
  Name: 

  	
  Masood Fikree

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
						



 


4

















 


	
   

  	
  Bank of Tokyo-Mitsubishi UPJ Trust Co.

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Kenneth K.
  Egusa

  	
   

  
	
   

  	
  Name: 

  	
  Kenneth K. Egusa

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
							



 


5

















 


	
   

  	
  Sumitomo Mitsui Banking Corporation

  
	
   

  	
  as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
     /s/ Leo Pagarigan

  	
   

  
	
   

  	
  Name: 

  	
  Leo Pagarigan

  	
   

  
	
   

  	
  Title:

  	
  General Manager

  	
   

  
							



 


6

















 


SCHEDULE 1.01


 


MANDATORY COST FORMULAE


 


1.                                       The Mandatory Cost (to the extent
applicable) is an addition to the interest rate to compensate Lenders for the
cost of compliance with:


 


(a)                                  the requirements of the Bank of England
and/or the Financial Services Authority (or, in either case, any other
authority which replaces all or any of its functions); or


 


(b)                                 the requirements of the European Central
Bank.


 


2.                                       On the first day of each Interest Period
(or as soon as possible thereafter) the Administrative Agent shall calculate,
as a percentage rate, a rate (the “Additional Cost Rate”) for each
Lender, in accordance with the paragraphs set out below.  The Mandatory Cost will be calculated by the
Administrative Agent as a weighted average of the Lenders’ Additional Cost
Rates (weighted in proportion to the percentage participation of each Lender in
the relevant Loan) and will be expressed as a percentage rate per annum.  The Administrative Agent will, at the request
of the Company or any Lender, deliver to the Company or such Lender as the case
may be, a statement setting forth the calculation of any Mandatory Cost.


 


3.                                       The Additional Cost Rate for any Lender
lending from a Lending Office in a Participating Member State will be the
percentage notified by that Lender to the Administrative Agent.  This percentage will be certified by such
Lender in its notice to the Administrative Agent to be its reasonable
determination of the cost (expressed as a percentage of such Lender’s
participation in all Loans made from such Lending Office) of complying with the
minimum reserve requirements of the European Central Bank in respect of Loans
made from that Lending Office.


 


4.                                       The Additional Cost Rate for any Lender
lending from a Lending Office in the United Kingdom will be calculated by the
Administrative Agent as follows:


 


(a)                                  in relation to any Loan in Sterling:


 


	
  AB+C(B-D)+E x 0.01

  	
    per
  cent per annum

  
	
  100 - (A+C)

  



 


(b)                                 in relation to any Loan in any currency
other than Sterling:


 


	
  E x 0.01 

  	
    per
  cent per annum

  
	
  300

  



 


Where:


 


“A”                          is the
percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as 


 


7

















 


an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.


 


“B”                            is the
percentage rate of interest (excluding the Applicable Rate, the Mandatory Cost
and any interest charged on overdue amounts pursuant to the first sentence of Section 2.08(b) and,
in the case of interest (other than on overdue amounts) charged at the Default
Rate, without counting any increase in interest rate effected by the charging
of the Default Rate) payable for the relevant Interest Period of such Loan.


 


“C”                            is the
percentage (if any) of Eligible Liabilities which that Lender is required from
time to time to maintain as interest bearing Special Deposits with the Bank of
England.


 


“D”                           is the
percentage rate per annum payable by the Bank of England to the Administrative
Agent on interest bearing Special Deposits.


 


“E”                             is designed to
compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Administrative Agent as being the average of the most recent
rates of charge supplied by the Lenders to the Administrative Agent pursuant to
paragraph 7 below and expressed in pounds per £1,000,000.


 


5.                                       For the purposes of this Schedule:


 


(a)                                  “Eligible Liabilities” and “Special
Deposits” have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England;


 


(b)                                 “Fees Rules” means the rules on
periodic fees contain in the FSA Supervision Manual or such other law or
regulation as may be in force from time to time in respect of the payment of
fees for the acceptance of deposits;


 


(c)                                  “Fee Tariffs” means the fee
tariffs specified in the Fees Rules under the activity group A.1 Deposit
acceptors (ignoring any minimum fee or zero rated fee required pursuant to the
Fees Rules but taking into account any applicable discount rate); and


 


(d)                                 “Tariff Base” has the meaning
given to it in, and will be calculated in accordance with, the Fees Rules.


 


6.                                       In application of the above formulae, A,
B, C and D will be included in the formulae as percentages (i.e. 5% will be included in the formula as 5 and not as
0.05).  A negative result obtained by
subtracting D from B shall be taken as zero. 
The resulting figures shall be rounded to four decimal places.


 


7.                                       If requested by the Administrative Agent
or the Company, each Lender with a Lending Office in the United Kingdom or a
Participating Member State shall, as soon as practicable after publication by
the Financial Services Authority, supply to the 


 


8

















 


Administrative Agent and the Company, the rate of
charge payable by such Lender to the Financial Services Authority pursuant to
the Fees Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by such Lender as being the
average of the Fee Tariffs applicable to such Lender for that financial year)
and expressed in pounds per £1,000,000 of the Tariff Base of such Lender.


 


8.                                       Each Lender shall supply any information
required by the Administrative Agent for the purpose of calculating its
Additional Cost Rate.  In particular, but
without limitation, each Lender shall supply the following information in
writing on or prior to the date on which it becomes a Lender:


 


(a)                                  the jurisdiction of the Lending Office
out of which it is making available its participation in the relevant Loan; and


 


(b)                                 any other information that the
Administrative Agent may reasonably require for such purpose.


 


Each Lender shall promptly
notify the Administrative Agent in writing of any change to the information
provided by it pursuant to this paragraph.


 


9.                                       The percentages of each Lender for the
purpose of A and C above and the rates of charge of each Lender for the purpose
of E above shall be determined by the Administrative Agent based upon the
information supplied to it pursuant to paragraphs 7 and 8 above
and on the assumption that, unless a Lender notifies the Administrative Agent
to the contrary, each Lender’s obligations in relation to cash ratio deposits
and Special Deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Lending Office in the same jurisdiction as its Lending
Office.


 


10.                                 The Administrative Agent shall have no
liability to any Person if such determination results in an Additional Cost
Rate which over- or under-compensates any Lender and shall be entitled to
assume that the information provided by any Lender pursuant to paragraphs 3,
7 and 8 above is true and correct in all respects.


 


11.                                 The Administrative Agent shall distribute
the additional amounts received as a result of the Mandatory Cost to the
Lenders on the basis of the Additional Cost Rate for each Lender based on the
information provided by each Lender pursuant to paragraphs 3, 7
and 8 above.


 


12.                                 Any determination by the Administrative
Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost,
an Additional Cost Rate or any amount payable to a Lender shall, in the absence
of manifest error, be conclusive and binding on all parties hereto.


 


13.                                 The Administrative Agent may from time to
time, after consultation with the Company and the Lenders, determine and notify
to all parties any amendments which are required to be made to this Schedule in
order to comply with any change in law, regulation or any requirements from
time to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which 


 


9

















 


replaces all or any of its functions) and any such
determination shall, in the absence of manifest error, be conclusive and
binding on all parties hereto.


 


10