Exhibit 10.9


 


EXECUTION COPY


 




Published CUSIP Number: [•]


 





AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of June 30, 2006


 


among


 


GENPACT INTERNATIONAL,


 


as the Borrower,


 


GENPACT GLOBAL HOLDINGS SICAR SARL,


 


as Holdings,


 


BANC OF AMERICA SECURITIES ASIA LIMITED,


 


as Administrative Agent,


 


BANK OF AMERICA, N.A.,


 


as Swing Line Lender and


L/C Issuer,


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES ASIA LIMITED, ABN AMRO BANK N.V.,

CITIGROUP GLOBAL MARKETS SINGAPORE PTE. LTD. and

GENERAL ELECTRIC CAPITAL CORPORATION


 


as Joint Mandated Lead Arrangers


 


BANC OF AMERICA SECURITIES ASIA LIMITED and

ABN AMRO BANK N.V.,


 


as Joint Book Managers




 





 

















 


TABLE
OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE I

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.01.

  	
   

  	
  Defined Terms

  	
   

  	
  2

  
	
  1.02.

  	
   

  	
  Other Interpretive Provisions

  	
   

  	
  30

  
	
  1.03.

  	
   

  	
  Accounting Terms

  	
   

  	
  31

  
	
  1.04.

  	
   

  	
  Rounding

  	
   

  	
  31

  
	
  1.05.

  	
   

  	
  Times of Day

  	
   

  	
  31

  
	
  1.06.

  	
   

  	
  Letter of Credit Amounts

  	
   

  	
  31

  
	
  1.07.

  	
   

  	
  Currency Equivalents Generally

  	
   

  	
  31

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE II

  	
   

  	
   

  
	
   

  	
   

  	
  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.01.

  	
   

  	
  The Loans

  	
   

  	
  32

  
	
  2.02.

  	
   

  	
  Borrowings and Continuations of Loans

  	
   

  	
  32

  
	
  2.03.

  	
   

  	
  Letters of Credit

  	
   

  	
  34

  
	
  2.04.

  	
   

  	
  Swing Line Loans

  	
   

  	
  41

  
	
  2.05.

  	
   

  	
  Prepayments

  	
   

  	
  43

  
	
  2.06.

  	
   

  	
  Termination or Reduction of Revolving Credit
  Commitments

  	
   

  	
  46

  
	
  2.07.

  	
   

  	
  Repayment of Loans

  	
   

  	
  46

  
	
  2.08.

  	
   

  	
  Interest

  	
   

  	
  47

  
	
  2.09.

  	
   

  	
  Fees

  	
   

  	
  48

  
	
  2.10.

  	
   

  	
  Computation of Interest and Fees

  	
   

  	
  48

  
	
  2.11.

  	
   

  	
  Evidence of Debt

  	
   

  	
  49

  
	
  2.12.

  	
   

  	
  Payments Generally; Administrative Agent’s Clawback

  	
   

  	
  49

  
	
  2.13.

  	
   

  	
  Sharing of Payments by Lenders

  	
   

  	
  51

  
	
  2.14.

  	
   

  	
  Incremental Facility

  	
   

  	
  52

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE III

  	
   

  	
   

  
	
   

  	
   

  	
  TAXES, YIELD PROTECTION AND
  ILLEGALITY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.01.

  	
   

  	
  Taxes

  	
   

  	
  54

  
	
  3.02.

  	
   

  	
  Illegality

  	
   

  	
  56

  
	
  3.03.

  	
   

  	
  Inability to Determine Rates

  	
   

  	
  56

  
	
  3.04.

  	
   

  	
  Increased Costs; Reserves on Loans

  	
   

  	
  57

  
	
  3.05.

  	
   

  	
  Compensation for Losses

  	
   

  	
  58

  
	
  3.06.

  	
   

  	
  Mitigation Obligations; Replacement of Lenders

  	
   

  	
  59

  
	
  3.07.

  	
   

  	
  Survival

  	
   

  	
  59

  



 


i

















 


	
   

  	
   

  	
  ARTICLE IV

  	
   

  	
   

  
	
   

  	
   

  	
  CONDITIONS PRECEDENT TO CREDIT
  EXTENSIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.01.

  	
   

  	
  Conditions of Initial Credit Extension

  	
   

  	
  59

  
	
  4.02.

  	
   

  	
  Conditions to All Credit Extensions

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE V

  	
   

  	
   

  
	
   

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.01.

  	
   

  	
  Existence, Qualification and Power; Compliance with
  Laws

  	
   

  	
  62

  
	
  5.02.

  	
   

  	
  Authorization; No Contravention

  	
   

  	
  63

  
	
  5.03.

  	
   

  	
  Governmental Authorization; Other Consents

  	
   

  	
  63

  
	
  5.04.

  	
   

  	
  Binding Effect

  	
   

  	
  63

  
	
  5.05.

  	
   

  	
  Financial Statements; No Material Adverse Effect

  	
   

  	
  64

  
	
  5.06.

  	
   

  	
  Litigation

  	
   

  	
  64

  
	
  5.07.

  	
   

  	
  Ownership of Property; Liens; Investments

  	
   

  	
  65

  
	
  5.08.

  	
   

  	
  Environmental Compliance

  	
   

  	
  65

  
	
  5.09.

  	
   

  	
  Insurance

  	
   

  	
  65

  
	
  5.10.

  	
   

  	
  Taxes

  	
   

  	
  66

  
	
  5.11.

  	
   

  	
  ERISA Compliance

  	
   

  	
  66

  
	
  5.12.

  	
   

  	
  Subsidiaries; Equity Interests; Loan Parties

  	
   

  	
  67

  
	
  5.13.

  	
   

  	
  Margin Regulations; Investment Company Act

  	
   

  	
  67

  
	
  5.14.

  	
   

  	
  Disclosure

  	
   

  	
  67

  
	
  5.15.

  	
   

  	
  Compliance with Laws

  	
   

  	
  68

  
	
  5.16.

  	
   

  	
  Intellectual Property; Licenses, Etc

  	
   

  	
  68

  
	
  5.17.

  	
   

  	
  Solvency

  	
   

  	
  68

  
	
  5.18.

  	
   

  	
  Casualty, Etc

  	
   

  	
  68

  
	
  5.19.

  	
   

  	
  Pari Passu Obligations

  	
   

  	
  68

  
	
  5.20.

  	
   

  	
  Genpact India Net Worth

  	
   

  	
  69

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE VI

  	
   

  	
   

  
	
   

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.01.

  	
   

  	
  Financial Statements

  	
   

  	
  69

  
	
  6.02.

  	
   

  	
  Certificates; Other Information

  	
   

  	
  70

  
	
  6.03.

  	
   

  	
  Notices

  	
   

  	
  73

  
	
  6.04.

  	
   

  	
  Payment of Obligations

  	
   

  	
  73

  
	
  6.05.

  	
   

  	
  Preservation of Existence, Etc

  	
   

  	
  74

  
	
  6.06.

  	
   

  	
  Maintenance of Properties

  	
   

  	
  74

  
	
  6.07.

  	
   

  	
  Maintenance of Insurance

  	
   

  	
  74

  
	
  6.08.

  	
   

  	
  Compliance with Laws

  	
   

  	
  74

  
	
  6.09.

  	
   

  	
  Books and Records

  	
   

  	
  74

  
	
  6.10.

  	
   

  	
  Inspection Rights

  	
   

  	
  74

  
	
  6.11.

  	
   

  	
  Use of Proceeds

  	
   

  	
  75

  
	
  6.12.

  	
   

  	
  Covenant to Guarantee Obligations and Give Security

  	
   

  	
  75

  
	
  6.13.

  	
   

  	
  Compliance with Environmental Laws

  	
   

  	
  77

  
	
  6.14.

  	
   

  	
  Further Assurances

  	
   

  	
  77

  



 


ii

















 


	
  6.15.

  	
   

  	
  Cash Collateral Accounts

  	
   

  	
  78

  
	
  6.16.

  	
   

  	
  Post-Closing Requirements

  	
   

  	
  78

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE VII

  	
   

  	
   

  
	
   

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.01.

  	
   

  	
  Liens

  	
   

  	
  79

  
	
  7.02.

  	
   

  	
  Indebtedness

  	
   

  	
  80

  
	
  7.03.

  	
   

  	
  Investments

  	
   

  	
  83

  
	
  7.04.

  	
   

  	
  Fundamental Changes

  	
   

  	
  84

  
	
  7.05.

  	
   

  	
  Dispositions

  	
   

  	
  85

  
	
  7.06.

  	
   

  	
  Restricted Payments

  	
   

  	
  86

  
	
  7.07.

  	
   

  	
  Change in Nature of Business

  	
   

  	
  87

  
	
  7.08.

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  87

  
	
  7.09.

  	
   

  	
  Burdensome Agreements

  	
   

  	
  87

  
	
  7.10.

  	
   

  	
  Use of Proceeds

  	
   

  	
  88

  
	
  7.11.

  	
   

  	
  Financial Covenants

  	
   

  	
  88

  
	
  7.12.

  	
   

  	
  Amendments of Organization Documents

  	
   

  	
  88

  
	
  7.13.

  	
   

  	
  Accounting Changes

  	
   

  	
  89

  
	
  7.14.

  	
   

  	
  Prepayments, Etc. of Indebtedness

  	
   

  	
  89

  
	
  7.15.

  	
   

  	
  Amendment, Etc. of the MSA and Indebtedness

  	
   

  	
  89

  
	
  7.16.

  	
   

  	
  Partnerships, Etc

  	
   

  	
  89

  
	
  7.17.

  	
   

  	
  Speculative Transactions

  	
   

  	
  89

  
	
  7.18.

  	
   

  	
  Formation of Subsidiaries

  	
   

  	
  89

  
	
  7.19.

  	
   

  	
  Mauritius Holding Companies

  	
   

  	
  90

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE VIII

  	
   

  	
   

  
	
   

  	
   

  	
  EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.01.

  	
   

  	
  Events of Default

  	
   

  	
  90

  
	
  8.02.

  	
   

  	
  Remedies upon Event of Default

  	
   

  	
  92

  
	
  8.03.

  	
   

  	
  Application of Funds

  	
   

  	
  93

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE IX

  	
   

  	
   

  
	
   

  	
   

  	
  ADMINISTRATIVE AGENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.01.

  	
   

  	
  Appointment and Authority

  	
   

  	
  94

  
	
  9.02.

  	
   

  	
  Rights as a Lender

  	
   

  	
  95

  
	
  9.03.

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  95

  
	
  9.04.

  	
   

  	
  Reliance by Administrative Agent

  	
   

  	
  96

  
	
  9.05.

  	
   

  	
  Delegation of Duties

  	
   

  	
  96

  
	
  9.06.

  	
   

  	
  Resignation of Administrative Agent

  	
   

  	
  96

  
	
  9.07.

  	
   

  	
  Non-Reliance on Administrative Agent and Other Lenders

  	
   

  	
  97

  
	
  9.08.

  	
   

  	
  No Other Duties, Etc

  	
   

  	
  97

  
	
  9.09.

  	
   

  	
  Administrative Agent May File Proofs of Claim

  	
   

  	
  97

  
	
  9.10.

  	
   

  	
  Collateral and Guaranty Matters

  	
   

  	
  98

  
	
  9.11.

  	
   

  	
  References to Collateral Agent

  	
   

  	
  99

  



 


iii

















 


	
   

  	
   

  	
  ARTICLE X

  	
   

  	
   

  
	
   

  	
   

  	
  CONTINUING GUARANTY

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.01.

  	
   

  	
  Guaranty

  	
   

  	
  99

  
	
  10.02.

  	
   

  	
  Rights of Lenders

  	
   

  	
  99

  
	
  10.03.

  	
   

  	
  Certain Waivers

  	
   

  	
  100

  
	
  10.04.

  	
   

  	
  Obligations Independent

  	
   

  	
  100

  
	
  10.05.

  	
   

  	
  Subrogation

  	
   

  	
  100

  
	
  10.06.

  	
   

  	
  Termination; Reinstatement

  	
   

  	
  100

  
	
  10.07.

  	
   

  	
  Subordination

  	
   

  	
  101

  
	
  10.08.

  	
   

  	
  Stay of Acceleration

  	
   

  	
  101

  
	
  10.09.

  	
   

  	
  Condition of Borrower

  	
   

  	
  101

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE XI

  	
   

  	
   

  
	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  11.01.

  	
   

  	
  Amendments, Etc

  	
   

  	
  101

  
	
  11.02.

  	
   

  	
  Notices and Other Communications; Facsimile Copies

  	
   

  	
  103

  
	
  11.03.

  	
   

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  104

  
	
  11.04.

  	
   

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  	
  104

  
	
  11.05.

  	
   

  	
  Payments Set Aside

  	
   

  	
  106

  
	
  11.06.

  	
   

  	
  Successors and Assigns

  	
   

  	
  106

  
	
  11.07.

  	
   

  	
  Treatment of Certain Information; Confidentiality

  	
   

  	
  110

  
	
  11.08.

  	
   

  	
  Right of Setoff

  	
   

  	
  110

  
	
  11.09.

  	
   

  	
  Interest Rate Limitation

  	
   

  	
  111

  
	
  11.10.

  	
   

  	
  Counterparts; Integration; Effectiveness

  	
   

  	
  111

  
	
  11.11.

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  111

  
	
  11.12.

  	
   

  	
  Severability

  	
   

  	
  111

  
	
  11.13.

  	
   

  	
  Replacement of Lenders

  	
   

  	
  112

  
	
  11.14.

  	
   

  	
  Governing Law; Jurisdiction; Etc

  	
   

  	
  112

  
	
  11.15.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  113

  
	
  11.16.

  	
   

  	
  USA PATRIOT Act Notice

  	
   

  	
  114

  
	
  11.17.

  	
   

  	
  Agent for Service of Process

  	
   

  	
  114

  
	
  11.18.

  	
   

  	
  Judgment Currency

  	
   

  	
  114

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
  S-1

  



 


iv

















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Revolving Credit
  Commitments and Term A Loans and Applicable Percentages

  
	
  4.01(a)(v)

  	
   

  	
  Additional Guaranty and
  Collateral Documents

  
	
  4.01(a)(ix)

  	
   

  	
  Local Counsel

  
	
  5.01(b)

  	
   

  	
  Loan Parties

  
	
  5.03

  	
   

  	
  Certain Authorizations

  
	
  5.05

  	
   

  	
  Supplement to Interim
  Financial Statements

  
	
  5.07(b)

  	
   

  	
  Existing Liens

  
	
  5.07(c)

  	
   

  	
  Owned Real Property

  
	
  5.07(d)

  	
   

  	
  Leased Real Property
  (Lessee)

  
	
  5.07(e)

  	
   

  	
  Existing Investments

  
	
  5.12

  	
   

  	
  Subsidiaries and Other
  Equity Investments; Loan Parties

  
	
  5.16

  	
   

  	
  Intellectual Property
  Matters

  
	
  6.12

  	
   

  	
  Guarantors

  
	
  6.16

  	
   

  	
  Post-Closing Matters

  
	
  7.02

  	
   

  	
  Existing Indebtedness

  
	
  7.05(f)

  	
   

  	
  Sale Leaseback
  Facilities

  
	
  11.02

  	
   

  	
  Administrative Agent’s
  Office, Certain Addresses for Notices

  



 


 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Form of

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Committed Loan Notice

  
	
  B

  	
   

  	
  Swing Line Loan Notice

  
	
  C-1

  	
   

  	
  Amended and Restated
  Term Note

  
	
  C-2

  	
   

  	
  Amended and Restated
  Revolving Credit Note

  
	
  D

  	
   

  	
  Compliance Certificate

  
	
  E

  	
   

  	
  Assignment and
  Assumption

  
	
  F

  	
   

  	
  Form of Consent and
  Ratification

  
	
  G-1

  	
   

  	
  Opinion Matters –
  Counsel to Loan Parties

  
	
  G-2

  	
   

  	
  Opinion Matters – Local
  Counsel Opinions

  



 


v

















 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


This AMENDED AND
RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of June 30,
2006, among GENPACT INTERNATIONAL, a Société à Responsabilité Limitée under the
laws of the Grand Duchy of Luxembourg (the “Borrower”), GENPACT GLOBAL
HOLDINGS SICAR SARL, a Société à Responsabilité Limitée qualifying as a Société
d’investissment en capital à risque under the laws of the Grand Duchy of
Luxembourg and the direct parent of the Borrower (“Holdings”), each
lender from time to time party hereto (collectively, the “Lenders” and
individually, a “Lender”), BANK OF AMERICA, N.A., as Swing Line Lender
and L/C Issuer and BANC OF AMERICA SECURITIES ASIA LIMITED (“BA ASIA”), as
Administrative Agent and Collateral Agent, and BA ASIA, ABN AMRO BANK N.V. (“ABN
AMRO,”), CITIGROUP GLOBAL MARKETS SINGAPORE PTE. LTD. (“CGM”) and
GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), as Joint Mandated Lead
Arrangers and BA ASIA and ABN AMRO as Joint Book Managers.


 


PRELIMINARY
STATEMENTS:


 


(1)           The Borrower, Holdings, the
Administrative Agent and certain Lenders have entered into a Credit Agreement
dated as of December 30, 2004 (the “Existing Credit Agreement”).


 


(2)           The Borrower has requested to amend
and restate the Existing Credit Agreement in its entirety in order, among other
things, to extend the maturity of the Term A Facility, to reduce the interest
rate and to modify the security provisions and certain covenants.


 


(3)           The Lenders (as defined in the
Existing Credit Agreement) have agreed to the amendment of the Existing Credit
Agreement as provided herein pursuant to a consent dated as of even date
herewith (the “Lender Consent”). 
Those lenders who have not agreed to the amendment have assigned their
Term A Loan and/or their Revolving Credit Commitment to existing Lenders or new
Lenders and the allocation of the Revolving Credit Commitments are set forth on
Schedule 2.01.


 


(4)           It is the intent of the parties
hereto that the Existing Credit Agreement be amended, with such amendment being
in the form of this Agreement, that this Agreement not constitute a novation of
the obligations and liabilities under the Existing Credit Agreement or evidence
payment of all or any of such obligations and liabilities, that this Agreement
amend and restate in its entirety the Existing Credit Agreement, and that from
and after the date hereof, the Existing Credit Agreement be of no further force
and effect except as to evidence the incurrence of the “Obligations” under the “Loan
Documents” (as each is defined therein) thereunder and representations and
warranties made thereunder.


 


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:


 


“ABN AMRO”
has the meaning specified in the introductory paragraph hereto.


 


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


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower 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.


 


“Agents”
means the Administrative Agent, the Collateral Agent and any other sub-agent
under Section 9.05 or otherwise contemplated by any Collateral Document.


 


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


 


“Agreement”
means this Credit Agreement.


 


“Amended and
Restated  Revolving Credit Note” means a promissory note made by the
Borrower in favor of a Revolving Credit Lender evidencing Revolving Credit
Loans or Swing Line Loans, as the case may be, made by such Revolving Credit
Lender, in substantially the form of Exhibit C-2.


 


“Amended and
Restated Term A Note” means a promissory note made by the Borrower in favor
of a Term A Lender evidencing Term A Loans made by such Term A Lender, in
substantially the form of Exhibit C 1.


 


“Applicable
Commitment Fee Percentage” means, at any time, 0.30% per annum.


 


“Applicable
Margin” means (i) for the first 120 days following the Closing Date,
0.875% per annum and (ii) thereafter, a percentage per annum determined by
reference to the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b)
and in accordance with the following table:


 


2

















 




	
  Pricing 

  Level

  	
   

  	
  Consolidated Leverage
  Ratio

  	
   

  	
  Applicable 

  Margin

  	
   

  
	
  1

  	
   

  	
  Less than 1.25:1.00

  	
   

  	
  0.70

  	
  %

  
	
  2

  	
   

  	
  Greater than or equal to
  1.25:1.00 but less than 1.75:1.00

  	
   

  	
  0.75

  	
  %

  
	
  3

  	
   

  	
  Greater than or equal to
  1.75:1.00

  	
   

  	
  0.875

  	
  %

  






 


Any increase or
decrease in the Applicable Margin 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, however, that if a Compliance Certificate
is not delivered when due in accordance with such Section, then Pricing Level 3
shall apply in respect of the Term A Facility and the Revolving Credit
Facility, in each case as of the first Business Day after the date on which
such Compliance Certificate was required to have been delivered.


 


“Applicable
Percentage” means (a) in respect of the Term A Facility, with respect to
any Term A Lender at any time, the percentage (carried out to the ninth decimal
place) of the Term A Facility represented by the principal amount of such Term
A Lender’s Term A Loans at such time and (b) in respect of the Revolving Credit
Facility, with respect to any Revolving Credit Lender at any time, the
percentage (carried out to the ninth decimal place) of the Revolving Credit
Facility represented by such Revolving Credit Lender’s Revolving Credit
Commitment at such time.  If the Revolving
Credit Commitment of each Revolving Credit Lender to make Revolving Credit
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 Revolving Credit
Commitments have expired, then the Applicable Percentage of each Revolving
Credit Lender in respect of the Revolving Credit Facility shall be determined
based on the Applicable Percentage of such Revolving Credit Lender in respect
of the Revolving Credit Facility most recently in effect, giving effect to any
subsequent assignments.  The initial
Applicable Percentage of each Lender in respect of each Facility 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
Revolving Credit Percentage” means with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lender’s Applicable Percentage in
respect of the Revolving Credit Facility at such time.


 


“Appropriate
Lender” means, at any time, (a) with respect to either the Term A Facility
or the Revolving Credit Facility, a Lender that has any combination of a
Commitment or outstanding Loans with respect to such Facility at such time, (b)
with respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if
any Letters of Credit have been issued pursuant to Section 2.03(a), the
Revolving Credit Lenders and (c) with respect to the Swing Line Facility, (i)
the Swing Line Lender and (ii) if any Swing Line Loans are outstanding pursuant
to Section 2.04(a), the Revolving Credit Lenders.


 


“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.


 


3

















 


“Assignment and
Assumption” means an assignment and assumption entered into by a Lender and
an Eligible Assignee (with the consent of any party whose consent is required
by Section 11.06(b), and accepted by the Administrative Agent, in
substantially the form of Exhibit E or any other form approved by the
Administrative Agent.


 


“Assuming
Lender” has the meaning specified in Section 2.14(c).


 


“Assumption
Agreement” has the meaning specified in Section 2.14(d)(ii).


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any Capitalized 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 or similar payments under the relevant lease or other
applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other
agreement or instrument were accounted for as a Capitalized Lease.


 


“Audited
Financial Statements” means the audited consolidated balance sheet of
Holdings and its Subsidiaries for the fiscal year ended December 31, 2005, and
the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of Holdings and its Subsidiaries,
including the notes thereto.


 


“Availability
Period” means the period from and including the Closing Date to the
earliest of (i) the Maturity Date for the Revolving Credit Facility, (ii) the
date of termination of the Revolving Credit Commitments pursuant to Section
2.06, and (iii) the date of termination of the commitment of each Revolving
Credit Lender to make Revolving Credit 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.


 


“BA ASIA”
means Banc of America Securities Asia Limited and its successors.


 


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


 


“Borrowing”
means a Revolving Credit Borrowing, a Swing Line Borrowing or the Term A
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
jurisdiction where the Administrative Agent’s Office is located and in New York
and, if such day relates to any Loan, means any such day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.


 


“Capital
Expenditures” means, with respect to any Person for any period, an amount
equal to (a) any expenditure incurred during such period in respect of the
purchase or other acquisition of any fixed or capital asset (excluding normal
replacements and maintenance which are properly charged to current operations,
but including the aggregate amount of such Person’s obligations with respect to
Capitalized Leases incurred or entered into during such 


 


4

















 


period
other than (i) the portion thereof attributable to interest and maintenance
expense and (ii) any Capitalized Lease permitted under Section 7.02(h))
in accordance with GAAP, minus (b) the amount of such expenditures made
by such Person during such period or a prior period (to the extent not
previously reimbursed) pursuant to contracts with customers of the Subsidiaries
of Holdings and the Borrower that are actually reimbursed in cash by such
customers during such period pursuant to the terms of such contracts.


 


“Capitalized
Leases” means all leases that have been or should be, in accordance with
GAAP, recorded as capitalized leases.


 


“Cash
Collateral Account” means (a) any deposit account or securities account of
the Borrower or Holdings in New York, New York and under the control of the
Collateral Agent pursuant to a “control agreement” in substantially the form
attached as Exhibit B to the Security Agreement or otherwise on terms
and conditions, and otherwise established in a manner, reasonably satisfactory
to the Administrative Agent, in each case, maintained with the Collateral Agent
or any of its affiliates or otherwise with a commercial bank or securities
intermediary reasonably acceptable to the Administrative Agent that has
accepted the assignment of such accounts to the Collateral Agent for the
benefit of the Secured Parties, or (b) a deposit, securities or other account
of the Borrower, Holdings or any Subsidiary in any jurisdiction outside of the
United States in which the Collateral Agent has a security interest or which
the Collateral Agent otherwise controls, in each case, (i) on terms and
conditions, and otherwise established in a manner, reasonably satisfactory to
the Administrative Agent, and (ii) maintained with the Collateral Agent or any
of its affiliates or otherwise with a commercial bank reasonably acceptable to
the Administrative Agent that has accepted the assignment of such accounts to
the Collateral Agent for the benefit of the Secured Parties.


 


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


 


“Cash
Distributions” means, with respect to any Person for any period, all
dividends and other distributions on any of the outstanding Equity Interests in
such Person, all purchases, redemptions, retirements, defeasances or other
acquisitions of any of the outstanding Equity Interests in such Person and all
returns of capital to the stockholders, partners or members (or the equivalent
persons) of such Person, in each case to the extent paid in cash by or on
behalf of such Person during such period.


 


“Cash
Equivalents” means any of the following types of Investments, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens
(other than Liens created under the Collateral Documents):


 


(a)           readily marketable obligations issued
or directly and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof having maturities of not more than 360
days 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)           time deposits with, or insured
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 


 


5

















 


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 is a member of the Federal Reserve System, (ii)
issues (or the parent of which issues) commercial paper rated as described in clause (c)
of this definition and (iii) has combined capital and surplus of at least
$1,000,000,000, in each case with maturities of not more than 90 days from the
date of acquisition thereof;


 


(c)           commercial paper issued by 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 with maturities of not
more than 180 days from the date of acquisition thereof;


 


(d)           Investments, classified in accordance
with GAAP as current assets of the Borrower or any of its Subsidiaries, in
money market investment programs registered under the Investment Company Act of
1940, which are administered by financial institutions that have the highest
rating obtainable from either Moody’s or S&P, and the portfolios of which
are limited solely to Investments of the character, quality and maturity
described in clauses (a), (b) and (c) of this definition;


 


(e)           short-term obligations issued by
entities organized under the laws of the People’s Republic of China, the
Republic of India and the United Mexican States, which, in each case, are given
the highest credit rating by independent rating agencies operating in those
respective jurisdictions recognized as the leading credit rating agencies in
such jurisdictions by the Administrative Agent; and


 


(f)            other Investments (not made for
speculative purposes with respect to currency exchange rates) of substantially
the same type, maturity and liquidity and issued by comparable governmental and
obligors having at least the same creditworthiness as the Investments and
obligors listed in clauses (a) through (e) above denominated in
the currency of any jurisdiction in which any Subsidiary of Holdings conducts
its operations.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act
of 1980.


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the U.S. Environmental Protection Agency.


 


“CFC” means
a Person that is a controlled foreign corporation under Section 957 of the
Code.


 


“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 administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any
Governmental Authority.


 


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


 


6

















 


(a)           Prior to a Qualifying IPO, the Equity
Investors and GE, collectively, shall cease to own and control legally and
beneficially, either directly or indirectly, Equity Interests in Holdings
representing at least a majority of the combined voting power of all of the
Equity Interests entitled to vote for members of the board of directors or
equivalent governing body of Holdings on a fully-diluted basis (including by
taking into account all such Equity Interests that the Equity Investors and GE
have the right to acquire pursuant to any option right); or


 


(b)           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 the Equity
Investors and GE 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 Equity Interests that
such person or group has the right to acquire (such right, an “option right”),
whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of (i) more than 50% of the common Equity
Interests of Holdings at any time, which shall also be deemed to have occurred
upon the creation of any Liens on such common Equity Interest in favor of such “person”
or “group”, or (ii) prior to a Qualifying IPO, more of the Equity Interests of
Holdings entitled to vote for members of the board of directors or equivalent
governing body of Holdings on a fully-diluted basis (including by taking into
account all such Equity Interests that such “person” or “group” has the right
to acquire pursuant to any option right) than is held by either the Equity
Investors or GE, whichever holds the greater percentage of such Equity
Interests among them; or


 


(c)           during any period of 24 consecutive
months, a majority of the members of the board of directors or other equivalent
governing body of Holdings 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


 


(d)           Holdings shall cease, directly or
indirectly, to own and control legally and beneficially all of the Equity
Interests in the Borrower;


 


provided, that the creation of any Lien, or any
agreement or commitment to create any Lien, that would otherwise result in a
Change of Control hereunder shall not constitute a Change of Control 


 


7

















 


to the extent that
such Lien, agreement or commitment does not result in the right to terminate
the MSA.


 


“China Security
Agreements” means one or more security agreements or comparable security,
pledge or collateral documents or instruments relating to the Equity Interests
in or of, or assets of, any Subsidiary of Holdings under the laws of the People’s
Republic of China delivered in connection with the Existing Credit Agreement
and such additional agreements, documents or instruments as may be required to
be delivered hereunder, in each case, in form and substance reasonably
satisfactory to the Administrative Agent.


 


“Closing Date”
means the first date, on or before June 30, 2006, on which all the conditions
precedent in Section 4.01 are satisfied or waived in accordance with Section
11.01.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


“Collateral”
means all of the “Collateral” and “Mortgaged Property” referred
to in the Collateral Documents and all of the other property and assets that
are or are intended under the terms of the Collateral Documents to be subject
to Liens in favor of the Administrative Agent for the benefit of the Secured
Parties.


 


“Collateral
Agent” means, as applicable, any of (i) the Administrative Agent or (ii) an
affiliate of the Administrative Agent acting in the capacity as collateral
agent under any Collateral Document.


 


“Collateral
Documents” means, collectively, the Security Agreement, the MSA Account
Control Agreements, the MSA Assignment Consent, the Luxembourg Security
Agreements, the Mauritius Pledge Agreements, the India Pledge Agreements, the
U.K. Security Agreements, the U.K. Pledge Agreements, the Consent, each of the
Mortgages, collateral assignments, security agreements, pledge agreements or
other similar agreements, consents and all supplements with respect to the
foregoing delivered to the Collateral Agent and the Lenders pursuant to Section
6.12 or otherwise required or contemplated (whether as of the Closing Date
or thereafter) by any of the foregoing agreements (including, without
limitation, the Hungary Security Agreements, the India Pledge Agreements, the
U.K. Security Agreements, the China Security Agreements and the Mexico Security
Agreements), and each of the other agreements, instruments or documents that
creates or purports to create a Lien in favor of the Collateral Agent for the
benefit of the Secured Parties.


 


“Commitment
Date” has the meaning specified in Section 2.14(b).


 


“Committed Loan
Notice” means a notice of (a) a Revolving Credit Borrowing or (b) a
continuation of Loans, pursuant to Section 2.02(a), which, if in
writing, shall be substantially in the form of Exhibit A.


 


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


 


“Consent”
has the meaning specified in Section 4.01(a).


 


8

















 


“Consolidated
EBITDA” means, for any Measurement Period, without duplication, an amount
equal to the Consolidated Net Income of Holdings and its Subsidiaries for such
Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: 
(i) Consolidated Interest Charges, (ii) the provision for Federal,
state, local and foreign income taxes payable, (iii) depreciation and
amortization expense, (iv) non recurring expenses reducing such Consolidated
Net Income in such period, and (v) non-cash expenses reducing such Consolidated
Net Income in such period and minus (b) the following to the extent
included in calculating such Consolidated Net Income:  (i) Federal, state, local and foreign income
tax credits, (ii) all non cash items increasing Consolidated Net Income, (iii)
non-recurring items increasing such Consolidated Net Income and (iv) non-cash
expenses (whether non-recurring or otherwise) reducing Consolidated Net Income
in a prior period, included in the calculation of Consolidated EBITDA for such
period, that become cash expenses or otherwise payable in cash in such period,
in each of clauses (a) and (b), of or by Holdings and its
Subsidiaries for such Measurement Period; provided, that for purposes of
determining Consolidated EBITDA for purposes of Section 7.11,
Consolidated Net Income shall be determined to exclude extraordinary losses
during such Measurement Period.


 


“Consolidated
Funded Indebtedness” means, as of any date of determination, for Holdings
and its Subsidiaries on a consolidated basis, the sum, without duplication, 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 obligations
in respect of the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business), (d) Attributable
Indebtedness, (e) all direct obligations arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments supporting outstanding Indebtedness, (f)
all Guarantees with respect to outstanding Indebtedness of the types specified
in clauses (a) through (e) above of Persons other than the
Borrower 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 or limited
liability company) in which the Borrower or a Subsidiary is a general partner
or joint venturer, unless such Indebtedness is expressly made non-recourse to
the Borrower or such Subsidiary; provided, that Indebtedness under a
facility permitted pursuant to Section 7.02(j) supported by a Letter of
Credit to the extent that the amount of such facility does not exceed the
amount of such Letter of Credit shall not constitute Consolidated Funded
Indebtedness.


 


“Consolidated
Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, debt discount, upfront financing fees, letter of credit fees and
capitalized interest (including, without limitation, in connection with the
deferred purchase price of assets), in each case to the extent treated as interest
in accordance with GAAP, (b) the portion of rent expense under Capitalized
Leases and Synthetic Lease Obligations that is treated as interest in
accordance with GAAP, and (c) net payments made (or less net payments
received) in respect of Swap Contracts permitted under this Agreement designed
to hedge or protect against interest rate fluctuations, in each case, of or by
Holdings and its Subsidiaries for such Measurement Period.


 


9

















 


“Consolidated
Interest Coverage Ratio” means, for any Measurement Period, the ratio of
(a) Consolidated EBITDA to (b) Consolidated Interest Charges, in each case, of
or by Holdings and its Subsidiaries for or during such Measurement Period.


 


“Consolidated
Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date less cash and Cash
Equivalents to (b) Consolidated EBITDA of Holdings and its Subsidiaries
for the most recently completed Measurement Period.


 


“Consolidated
Net Income” means, for any Measurement Period, the net income of Holdings
and its Subsidiaries (excluding extraordinary gains but including extraordinary
losses) on a consolidated basis for such Measurement 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, partial or total cessation of business,
bankruptcy, assignment for the benefit of creditors, suspension of payments,
moratorium, winding-up, dissolution, administration, rearrangement,
receivership, insolvency, reorganization (by way of voluntary arrangement,
scheme or arrangement or otherwise) or similar debtor relief Laws of the 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 Eurodollar Rate plus (ii) the
Applicable Margin plus (iii) 2.00% per annum; provided, however,
that, with respect to a Loan, the Default Rate shall be an interest rate equal
to the interest rate (including any Applicable Margin) otherwise applicable to
such Loan plus 2.00% per annum; and provided  further that,
with respect to any amount of the Obligations that is not paid when due, the
Eurodollar Rate shall be determined by the Administrative Agent as though the
unpaid amount were a Loan made on the due date with an Interest Period
determined pursuant to clause (d) of the definition thereof and (b) when
used with respect to Letter of Credit Fees, a rate equal to 3.00% per annum.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of the
Term A Loans, Revolving Credit Loans, participations in L/C Obligations or
participations in 


 


10

















 


Swing
Line Loans required to be funded by it hereunder within one Business Day of the
date required to be funded by it hereunder, (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 (c) has been deemed insolvent or become
the subject of any proceeding under Debtor Relief Laws.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person (or the granting of any option or other right to do any of the
foregoing), 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.


 


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


 


“EBITDA”
means, for any period, for any Person, the sum, determined on a consolidated
basis, of (a) net income (or net loss) plus (b) interest expense plus, (c)
income tax expense plus (d) depreciation expense plus (e) amortization expense,
with each such component determined in accordance with GAAP or such accounting
standard as the Administrative Agent may reasonably accept, for such period.


 


“Eligible
Assignee” means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved
Fund; and (d) any other Person (other than a natural person) approved by (i)
the Administrative Agent, (ii) in the case of any assignment of a Revolving
Commitment, the L/C Issuer and the Swing Line Lender, and (iii) unless an Event
of Default has occurred and is continuing, the Borrower (each such approval not
to be unreasonably withheld or delayed); provided, that notwithstanding
the foregoing, “Eligible Assignee” shall not include Holdings, the Borrower or
any of Holdings’ Subsidiaries or any Equity Investor Related Party.


 


“Eligible
Subsidiary” has the meaning specified in Section 6.12(a).


 


“Environmental
Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, 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 Borrower, 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.


 


11

















 


“Environmental
Permit” means any permit, approval, identification number, license or other
authorization required under any Environmental Law.


 


“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, including any capital stock or interests issuable upon
the occurrence or existence of any event or condition.


 


“Equity
Investor Related Party” means (a) the Equity Investors (including their
affiliated funds), (b) any fund or other entity that is administered, advised
or managed by any Equity Investor or its affiliated funds or by any Person that
administers, advises or manages any Equity Investor or its affiliated funds,
and (c) any Person that administers, advises or manages any Equity Investor or
any of its affiliated funds and such Person.


 


“Equity
Investors” means (a) Wachovia Corporation and its respective Affiliates and
(b) General Atlantic Partners, LLC and Oak Hill Capital Management, Inc. and
their respective affiliated funds.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as it may be
amended, and all rules and regulations promulgated and all rulings issued
thereunder.


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with Holdings 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 Borrower 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 Borrower or any 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 Sections 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 Borrower or any ERISA Affiliate.


 


12

















 


“Eurodollar
Rate” means, for any Interest Period, the rate per annum (rounded upward to
the nearest whole multiple of 1/16 of 1% 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, for Dollar deposits (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 “Eurodollar Rate” for such Interest Period shall be
the rate per annum determined by the Administrative Agent on the basis of
applicable rates furnished to and received by the Administrative Agent from the
Reference Banks two Business Days before the first day of such Interest Period,
subject to the provisions of Section 3.03.


 


“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 the Borrower or Holdings hereunder, (a) taxes imposed on or
measured by its overall net income (however denominated), and franchise taxes
imposed on it (in lieu of net income taxes), by any jurisdiction (or any
political subdivision thereof) (i) under the laws of which such recipient is organized
or in which its principal office is located or, in the case of any Lender, in
which its applicable Lending Office is located or (ii) that would not have been
imposed but for a connection between such Lender, Administrative Agent, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Borrower or Holdings hereunder and the jurisdiction imposing
such Tax or any political subdivision thereof or therein other than a
connection arising as a result of such recipient having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any of the other Loan Documents, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction (i) in which the Borrower is located or (ii) that would not have
been imposed but for a connection between such Lender, Administrative Agent,
the L/C Issuer or any other recipient of any payment to be made by or on
account of any obligation of the Borrower or Holdings hereunder and the
jurisdiction imposing such Tax or any political subdivision thereof or therein
other than a connection arising as a result of such recipient having executed,
delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any of the other Loan Documents, and (c) any taxes
attributable to such Lender’s failure to comply with the requirements described
in Section 3.01(e).


 


“Facility”
means the Term A Facility, the Revolving Credit Facility, the Swing Line
Sublimit or the Letter of Credit Sublimit, as the context may require.


 


“Fee Letter”
means the letter agreement, dated April 21, 2006, among the Borrower and
the Joint Mandated Lead Arrangers (except for GECC) and certain of their
Affiliates.


 


“Foreign
Benefit Arrangement” has the meaning specified in Section 5.11(d).


 


“Foreign
Collateral Documents” means the Collateral Documents governed by the laws
of any jurisdiction other than any state of the United States.


 


13

















 


“Foreign Plan”
has the meaning specified in Section 5.11(d).


 


“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.


 


“Funded Debt”
of any Person means Indebtedness in respect of the Credit Extensions, in the
case of the Borrower, and all other Indebtedness of such Person that by its
terms matures more than one year after the date of its creation or matures
within one year from such date but is renewable or extendible, at the option of
such Person, to a date more than one year after such date or arises under a
revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year after such date.


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.


 


“GE” means
General Electric Company, a New York corporation.


 


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


 


“GECIM”
means GE Capital International (Mauritius), a Mauritius corporation.


 


“Genpact India”
means Genpact India, a private company with unlimited liability incorporated
under the India Companies Act, 1956.


 


“Genpact India
Financial Statements” means the consolidated  balance sheet and income statement of Genpact
India for the fiscal year ended March 31, 2006 prepared by management of
Genpact India in accordance with Indian statutory accounting requirements.


 


“Genpact
Sub-Contracts” means, collectively, the contracts entered into from time to
time in the ordinary course between the Borrower, on the one hand, and any
Subsidiary of Holdings, on the other hand, relating to the provision of services
under and as defined in the MSA or any other master services agreements or
statements of work thereunder entered into by the Borrower with third parties.


 


“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).


 


14

















 


“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 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, (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, (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 (iv) entered into for the purpose of assuring in
any other manner the obligee in respect of such Indebtedness 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 is assumed by such Person (or any right, contingent or otherwise,
of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee 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.  The term “Guarantee” as a
verb has a corresponding meaning.


 


“Guaranteed
Obligations” has the meaning specified in Section 10.01.


 


“Guarantors”
means, collectively, Holdings, the Subsidiaries of Holdings listed on Schedule
6.12 and each other Subsidiary of Holdings that shall be required to
execute and deliver a guaranty or guaranty supplement pursuant to Section
6.12.


 


“Guaranty”
means, collectively, the Guaranty made by Holdings under Article X in
favor of the Secured Parties and the Subsidiary Guaranty made by the Guarantors
(other than Holdings) in favor of the Secured Parties, together with each other
guaranty and guaranty supplement delivered pursuant to Section 6.12.


 


“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 substances or wastes of any nature regulated pursuant to any
Environmental Law.


 


“Hedge Bank”
means any Person that is a Lender or an Affiliate of a Lender, in its capacity
as a party to a Secured Hedge Agreement.


 


“Holdings”
has the meaning specified in the Preliminary Statements to this Agreement.


 


“Holdings
Valuation” means an amount equal to the product of (i) the Qualifying IPO
price per share of Holdings’ common Equity Interests offered in the Qualifying
IPO (as set forth in the final prospectus of Holdings for such Qualifying IPO) multiplied
by (ii) the fully 


 


15

















 


diluted
number of Holdings’ common Equity Interests outstanding immediately prior to
such Qualifying IPO (giving pro forma effect to the exercise or conversion of
all outstanding shares of preferred Equity Interests, options, warrants and
other Equity Interests (or other securities or interests) convertible into or
exchangeable for Holdings’ common Equity Interests whether or not then
exercisable or convertible, that have exercise or conversion prices less than
the Qualifying IPO price per share).


 


“Hungary
Security Agreements” means one or more security agreements or comparable
security, pledge or collateral documents or instruments relating to the Equity
Interests in or of, or assets of, any Subsidiary of Holdings under the laws of
Hungary delivered in connection with the Existing Credit Agreement and such
additional agreements, documents or instruments as may be required to be
delivered hereunder, in each case, in form and substance reasonably
satisfactory to the Administrative Agent.


 


“Increase Date”
has the meaning specified in Section 2.14(a).


 


“Increasing
Lender” has the meaning specified in Section 2.14(b).


 


“Incremental
Commitments” has the meaning specified in Section 2.14(a).


 


“Incremental
Facility” has the meaning specified in Section 2.14(a).


 


“Incremental
Facility Lender” has the meaning specified in Section 2.14(c).


 


“Incremental
Term Facility” has the meaning specified in Section 2.14(a).


 


“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 not past due for more than 60
days after the date on which such trade account was created);


 


(e)           indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being purchased by
such Person (including indebtedness arising under 


 


16

















 


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)            all Capitalized Lease obligations
and Synthetic Lease Obligations of such Person;


 


(g)           all obligations (whether contingent
or otherwise) with respect to any Equity Interest which, either by its terms
(or by the terms of any security or other Equity Interests into which it is
convertible or for which it is exchangeable) or upon the happening of any event
or condition, (i) matures or is mandatorily redeemable or required to be
purchased, retired or defeased (whether pursuant to a sinking fund obligations
or otherwise), (ii) requires the payment of any liquidated damages or all or
portion of the liquidation value thereof, (iii) is redeemable at the option of
the holder thereof, in whole or in part, (iv) provides for the scheduled
payments of dividends in cash, or (v) is or becomes convertible into or
exchangeable for Indebtedness or any other Equity Interests of the type
contemplated in clauses (i) through (iv) above, in each case,
prior to the date that is one year after the latest Maturity Date of the
Facilities; 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 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.  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.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitees”
has the meaning specified in Section 11.04(b).


 


“India Pledge
Agreement” means one or more pledge agreements or comparable security,
pledge or collateral documents or instruments relating to the Equity Interests
in or of, any Subsidiary of Holdings under the laws of India delivered in
connection with the Existing Credit Agreement and such additional agreements,
documents or instruments as may be required to be delivered hereunder, in each
case, in form and substance reasonably satisfactory to the Administrative
Agent.


 


“Interest Payment
Date” means as to any Loan, the last day of each Interest Period applicable
to such Loan and the Maturity Date of the Facility under which such Loan was
made; provided, however, that if any Interest Period for a 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.


 


“Interest
Period” means, as to each Loan, the period commencing on the date such Loan
is disbursed or continued and ending (other than in the case of Swingline
Loans) on the date one, two, three or six months thereafter (or, in the case of
Swingline Loans, ending one week or such other period as the Swing Line Lender
may agree thereafter), as selected by the 


 


17

















 


Borrower
in its Committed Loan Notice or such other period that is twelve months or less
(except with respect to Swingline Loans) requested by the Borrower and
consented to by all Appropriate Lenders with respect to such Loans; provided
that:


 


(a)           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;


 


(b)           any Interest Period comprised of a
whole number of months 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;


 


(c)           no Interest Period shall extend
beyond the Maturity Date of the Facility under which such Loan was made; and


 


(d)           the Interest Period for (i) any
Borrowings on the Closing Date shall be one month and (ii) any amount of the
Obligations that is not paid when due shall be one week, or, in each case, any
shorter period selected by the Administrative Agent.


 


“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
Equity Interests of or in 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 of or interest in, another 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 or all or a
substantial part of the business of such Person.  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”
has the meaning specified in Section 5.16.


 


“IRS” means
the United States Internal Revenue Service.


 


“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 each other document, agreement and instrument entered
into by the L/C Issuer and the Borrower (or any Subsidiary) or in favor the L/C
Issuer and relating to any such Letter of Credit.


 


“Joint Mandated
Lead Arrangers” means, collectively, BA ASIA, ABN AMRO, CGM and GECC in
their capacities as Joint Mandated Lead Arrangers for the Facilities.


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial 


 


18

















 


precedents
or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or
administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with,
any Governmental Authority, in each case whether or not having the force of
law.


 


“L/C Advance”
means, with respect to each Revolving Credit Lender, such Lender’s funding of
its participation in any L/C Borrowing in accordance with its Applicable Percentage.


 


“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
Revolving Credit Borrowing.


 


“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 Bank of America in its capacity as issuer 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 1.06.  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.


 


“Lender Consent”
has the meaning specified in the Preliminary Statements.


 


“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 Borrower and the Administrative
Agent.


 


“Letter of
Credit” means any standby letter of credit issued hereunder and includes
the letters of credit issued under the Existing Credit Agreement, which shall
be deemed “Letters of Credit” for purposes of this Agreement.


 


“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.


 


19

















 


“Letter of
Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect for the Revolving Credit Facility (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 Revolving Credit Facility.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, 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 the Borrower under Article II
in the form of a Term A Loan, a Revolving Credit Loan or a Swing Line Loan.


 


“Loan Documents”
means, collectively, (a) this Agreement, (b) the Notes, (c) the Guaranty, (d)
the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g)
each Secured Hedge Agreement and (h) Treasury Management Agreements; provided
that for purposes of Articles IV through VIII, “Loan Documents” shall not
include Secured Hedge Agreements and Treasury Management Agreements (other than
for purpose of Sections 6.12 and 6.14).


 


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


 


“Luxco 1”
means Genpact Global (Lux) Sarl, a Société à Responsabilité Limitée under the
laws of the Grand Duchy of Luxembourg and the direct parent of Holdings.


 


“Luxembourg
Security Agreements” means one or more security agreements or comparable
security, pledge or collateral documents or instruments relating to the Equity
Interests in or of, or assets of, any Loan Party under the laws of Luxembourg
delivered in connection with the Existing Credit Agreement and such additional
agreements, documents or instruments as may be required to be delivered
hereunder, in each case, in form and substance reasonably satisfactory to the
Administrative Agent.


 


 “Material Adverse Effect” means (a) a
material adverse change in, or a material adverse effect upon, the properties,
business, condition (financial or otherwise) or results of operations of the
Borrower or of Holdings and its Subsidiaries taken as a whole; (b) a material
impairment of the rights and remedies of any Agent or any Lender under any Loan
Document, or of the ability of any 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.


 


“Maturity Date”
means (a) with respect to the Revolving Credit Facility, the earlier of (i)
June 30, 2011 and (ii) the date of termination in whole of the Revolving
Credit 


 


20

















 


Commitments
pursuant to Section 2.06 or 8.02 and (b) with respect to the Term
A Facility, the earlier of (i) June 30, 2011 and (ii) such other date as
this Agreement provides for the termination of the Term A Facility.


 


“Mauritius
Genpact India Investments” means Genpact India Investments, a limited liability
company organized under the laws of Mauritius.


 


“Mauritius
Holding Companies” means Genpact India International, a limited liability
company organized under the laws of Mauritius, Genpact India Holdings, a
limited liability company organized under the laws of Mauritius, and Mauritius
Genpact India Investments.


 


“Mauritius
Pledge Agreement” means one or more pledge agreements or comparable
security, pledge or collateral documents or instruments relating to the Equity
Interests in or of, any Subsidiary of Holdings under the laws of Mauritius
delivered in connection with the Existing Credit Agreement and such additional
agreements, documents or instruments as may be required to be delivered
hereunder, in each case, in form and substance reasonably satisfactory to the
Administrative Agent.


 


“Measurement
Period” means a period of four consecutive fiscal quarters of Holdings.


 


“Mexico
Security Agreements” means one or more security agreements or comparable
security, pledge or collateral documents or instruments relating to the Equity
Interests in or of, or assets of, any Subsidiary of Holdings under the laws of
Mexico, in each case, in form and substance reasonably satisfactory to the
Administrative Agent.


 


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


 


“Mortgages”
means any mortgages, deeds of trust and similar documents and instruments, as
applicable, in any relevant jurisdictions necessary to create a valid and
effective security interest in any real property interests (including
improvements and fixtures thereon) in such jurisdiction.


 


“MSA” means
the Master Services Agreement dated as of December 30, 2004 between GE and the
Borrower, as amended on December 16, 2005.


 


“MSA Account
Control Agreement” means (a) any account control agreement (whether deposit
account or securities account) in form and substance, and on terms and
conditions, reasonably satisfactory to the Administrative Agent, among the
Borrower, the Collateral Agent, and the bank or financial institution acting as
Administrative Agent or the Collateral Agent or an affiliate thereof, in each
case, in New York, New York with respect to any account in New York, New York
into which payments in connection with the MSA are to be paid as provided in Section
6.15, and (b) any fixed or floating charge over deposits (whether deposit
account or securities account) (or any other charge, pledge or other security
document or instrument in form and substance, and on terms and conditions,
reasonably satisfactory to the Administrative Agent), among the Borrower, the
Collateral Agent, and the bank or financial institution acting as
Administrative Agent or the Collateral Agent or an affiliate thereof, in each 


 


21

















 


case,
in London, England, with respect to any account in London, England into which
payments in connection with the MSA are to be paid as provided in Section
6.15.


 


“MSA Assignment
Consent” means the Assignment Acknowledgment and Consent Agreement, among
GE, the Borrower and the Collateral Agent.


 


“MSA Collateral
Account” means (a) any blocked, non-interest bearing deposit account of the
Borrower at the bank or financial institution acting as Administrative Agent or
the Collateral Agent or an affiliate thereof, in each case, in New York, New
York, in the name of the Borrower and under the control of the Collateral Agent
pursuant to an MSA Account Control Agreement contemplated in clause (a)
of the definition thereof, which may be linked to a securities account in New
York, New York with such bank or an affiliate under the control of the
Collateral Agent pursuant to the same or an additional MSA Account Control
Agreement, and (b) any account of the Borrower at the bank or financial
institution acting as Administrative Agent or the Collateral Agent or an
affiliate thereof, in each case, in London, England in the name of the Borrower
and under the control of the Collateral Agent pursuant to an MSA Account
Control Agreement contemplated in clause (b) of the definition thereof,
which may be linked to a securities or similar account in London, England with
such bank or an affiliate under the control of the Collateral Agent pursuant to
the same or an additional MSA Account Control Agreement.


 


“Multiemployer
Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, other than a Foreign Benefit Arrangement or Foreign Plan,
to which the Borrower 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.


 


“Net Cash
Proceeds” means with respect to any Disposition by any Loan Party or any of
its Subsidiaries, or any proceeds of casualty insurance, condemnation awards,
indemnity payments or similar proceeds received or paid to the account of any
Loan Party or any of its Subsidiaries, the excess, if any, of (i) the sum of
cash and Cash Equivalents received in connection with such transaction
(including any cash or Cash Equivalents received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when
so received) and any purchase price adjustments over (ii) the sum of (A) the
principal amount of any Indebtedness that is secured by the applicable asset
and that is required to be repaid in connection with such transaction (other
than Indebtedness under the Loan Documents), (B) the out of pocket expenses
incurred by such Loan Party or such Subsidiary in connection with such
transaction, (C) income taxes reasonably estimated to be actually payable
within two years of the date of the relevant transaction as a result of any
gain recognized in connection therewith, and (D) any reserves with respect to
liabilities reasonably expected to arise within six months after the date of the
transaction for indemnity payments or purchase price adjustments (other than
working capital and similar adjustments unless required to be held in escrow)
payable under the applicable Disposition documents and after such six-month
period, such reserves, to the extent not so applied, shall constitute Net Cash
Proceeds.


 


“Note”
means a Term A Note or a Revolving Credit Note, as the context may require.


 


“NPL” means
the National Priorities List under CERCLA.


 


22

















 


“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.  The foregoing
shall also include all obligations of any Loan Party under any Treasury
Management Agreement between any Loan Party and any Lender or Affiliate of a
Lender.


 


“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, fixed or variable registration duties, 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 Term A Loans, Revolving Credit Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any borrowings and prepayments or repayments of
Term A Loans, Revolving Credit Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations 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 Borrower of Unreimbursed Amounts.


 


“Participant”
has the meaning specified in Section 11.06(d).


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


“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 Borrower or any ERISA Affiliate or
to which the Borrower 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.


 


23

















 


“Permitted
Encumbrances” has the meaning specified in the Mortgages.


 


“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), other than a Foreign Benefit Arrangement or a Foreign Plan,
established by the Borrower or, with respect to any such plan that is subject
to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.


 


“Pledged Debt”
has the meaning specified in Section 1(d)(iv) of the Security Agreement.


 


“Pledged Equity”
has the meaning specified in Section 1(d)(iii) of the Security
Agreement.


 


“Projections”
means all financial projections concerning Holdings and its subsidiaries.


 


“Qualifying IPO”
means Holding’s or pursuant to Section 7.04, a successor entity’s first underwritten
public offering of its common Equity Interests pursuant to a registration
statement under the Securities Act of 1933, as amended, that either (x) (i)
results in gross proceeds of at least $75 million, (ii) implies a Holdings
Valuation of at least $750 million and (iii) results in the listing or
quotation of Holdings’ or a successor entity’s common Equity Interests on a
recognized United States or international securities exchange or (y) was
initiated by GECIM pursuant to Section 4.02 of the Shareholders’ Agreement.


 


“Reduction
Amount” has the meaning set forth in Section 2.05(b)(vi).


 


“Reference
Banks” means Bank of America and Citibank, N.A., Hong Kong Branch.


 


“Register”
has the meaning specified in Section 11.06(c).


 


“Registered
Public Accounting Firm” has the meaning specified by the Securities Laws
and shall be independent of Holdings 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 of Revolving Credit
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.


 


24

















 


“Required
Lenders” means, as of any date of determination Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each
Revolving Credit Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Revolving Credit
Lender for purposes of this definition) and (b) aggregate unused Revolving
Credit Commitments; provided that the unused Revolving Credit 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.


 


“Required
Revolving Lenders” means, as of any date of determination,  Revolving Credit Lenders holding more than
50% of the sum of the (a) Total Revolving Credit Outstandings (with the
aggregate amount of each Revolving Credit Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held”
by such Revolving Credit Lender for purposes of this definition) and (b)
aggregate unused Revolving Credit Commitments; provided that the unused
Revolving Credit Commitment of, and the portion of the Total Revolving Credit
Outstandings held or deemed held by, any Defaulting Lender shall be excluded
for purposes of making a determination of Required Revolving Lenders.


 


“Required Term
A Lenders” means, as of any date of determination, Term A Lenders holding
more than 50% of the sum of the aggregate principal amount of the Term A Loans
outstanding on such date.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, vice-president, treasurer or assistant treasurer of a Loan Party or,
with respect to any Subsidiary that is not a domestic Subsidiary, an equivalent
position, including directors.  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 (i) any dividend or other distribution (whether in cash,
securities or other property) with respect to any capital stock or other Equity
Interest of any Person or any of its Subsidiaries, or (ii) any payment (whether
in cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such capital stock or other
Equity Interest, or on account of any return of capital to any Person’s
stockholders, partners or members (or the equivalent of any thereof), or (iii)
any option, warrant or other right to acquire any such dividend or other
distribution or payment.


 


“Revolving
Credit Borrowing” means a borrowing consisting of simultaneous Revolving
Credit Loans having the same Interest Period made by each of the Revolving
Credit Lenders pursuant to Section 2.01(b).


 


“Revolving
Credit Commitment” means, as to each Revolving Credit Lender, its
obligation to (a) make Revolving Credit Loans to the Borrower pursuant to Section
2.01(b), (b) purchase participations in L/C Obligations, and (c) purchase
participations in Swing Line Loans, 


 


25

















 


in an
aggregate principal amount at any one time outstanding not to exceed the amount
set forth opposite such Lender’s name on Schedule 2.01 under the caption
“Revolving Credit Commitment” or opposite such caption 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.


 


“Revolving
Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time (equal to
$100,000,000 on the Closing Date).


 


“Revolving
Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.


 


“Revolving
Credit Loan” has the meaning specified in Section 2.01(b).


 


 “Revolving Facility Increase” has the
meaning specified in Section 2.14(a).


 


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


 


“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.


 


“Secured Hedge
Agreement” means any Swap Contract permitted under Article
VI or VII that is
entered into by and between the Borrower and any Hedge Bank, the aggregate
notional amount of which does not exceed, on any date, in the case of interest
rate Swap Contracts, the outstanding principal amount of the Term A Loan on
such date.


 


“Secured
Obligations” has the meaning specified in Section 2 of the Security
Agreement.


 


“Secured
Parties” means, collectively, the Administrative Agent, the Lenders, the
L/C Issuer, the Hedge Banks, any Person that is a Lender or an Affiliate of a
Lender in its capacity as a party to a Treasury Management Agreement, each co
agent or sub-agent appointed by the Administrative Agent from time to time
pursuant to Section 9.05, and the other Persons the Secured Obligations
owing to which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.


 


“Securities
Laws” means the Securities Act of 1933, the Securities Exchange Act of
1934, Sarbanes Oxley and, in each case, the rules and regulations of the SEC
promulgated thereunder, and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the Public Company Accounting Oversight Board, as each of the foregoing may
be amended and in effect on any applicable date under this Agreement.


 


26

















 


“Security
Agreement” means the Security Agreement dated December 30, 2004 among the
Borrower, Holdings and the Grantors (as defined therein) and Bank of America,
N.A. as Collateral Agent (as it may be amended, amended and restated,
supplemented or otherwise modified from time to time).


 


“Security
Agreement Supplement” means any supplement to the Collateral Documents,
including the supplement referred to in Section 21(b) of the Security
Agreement.


 


“Shareholders’
Agreement” means the Amended and Restated Shareholders’ Agreement dated
December 16, 2005 among Holdings, Luxco 1, the Equity Investors, GECIM and the “Shareholders”
referred to therein.


 


“Solvent”
and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (b) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and
liabilities as they mature, (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute an unreasonably small capital, and (e)
with respect to any Person organized under the laws of Luxembourg, the credit
position of such Person would not result in an Event of Default under Section
8.01(g)(iv).  The amount of
contingent liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.


 


“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 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; provided,
that a corporation, partnership, joint venture, limited liability company or
other business entity shall not be a “Subsidiary” of a Person solely as
a result of such Person’s performing all or substantially all of the business
or operations (without control of management) 
of such corporation, partnership, joint venture, limited liability
company or other business entity, and sharing in any costs, revenues and
profits thereof, pursuant to any contractual or similar arrangement.  Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of Holdings, including the Borrower.


 


“Specified Loan
Party” has the meaning specified in Section 4.01(a).


 


“Subsidiary
Report” has the meaning specified in Section 6.02(k).


 


“Swap Contract”
means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, 


 


27

















 


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,
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.


 


“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 shall be substantially in the form of Exhibit B.


 


“Swing Line
Sublimit” means an amount equal to the lesser of (a) $5,000,000 and (b) the
Revolving Credit Facility.  The Swing
Line Sublimit is part of, and not in addition to, the Revolving Credit
Facility.


 


“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 (including sale and leaseback
transactions), in each case, creating obligations that do not appear on the
balance sheet of such Person but which, upon the application of any Debtor
Relief Laws to such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).


 


28

















 


“Tax Matters
Agreement” means the Tax Matters Agreement dated December 30, 2004 among
GECIM, Garuda Investment Co., a Cayman Islands corporation and Holdings.


 


“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.


 


“Term A
Borrowing” means a borrowing consisting of simultaneous Term A Loans having
the same Interest Period made by each of the Term A Lenders pursuant to Section 2.01(a).


 


“Term A
Facility” means, at any time, the aggregate principal amount of the Term A
Loans of all Term A Lenders outstanding at such time (equal to $150,000,000 on
the Closing Date).


 


“Term A Lender”
means any Lender that holds Term A Loans at such time.


 


“Term A Loan”
means an advance made by any Term A Lender under the Term A Facility.


 


“Threshold
Amount” means $15,000,000.


 


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


 


“Total
Revolving Credit Outstandings” means the aggregate Outstanding Amount of
all Revolving Credit Loans, Swing Line Loans and L/C Obligations.


 


“Transaction”
means the execution and delivery of, and funding under, this Agreement.


 


“Treasury
Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, funds transfer,
automated clearinghouse, zero balance accounts, returned check concentration,
controlled disbursement, lockbox, account reconciliation and reporting and
trade finance services.


 


“UCC” means
the Uniform Commercial Code as in effect in the State of New York; provided
that, if perfection or the effect of perfection or non-perfection or the
priority of any security interest in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of New
York, “UCC” means the Uniform Commercial Code as in effect from time to
time in such other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or priority.


 


“U.K. Pledge
Agreements” means one or more pledge agreements or comparable security,
pledge or collateral documents or instruments relating to the Equity Interests
in or of, any Subsidiary of Holdings under the laws of England and Wales
delivered in connection with the Existing Credit Agreement and such additional
agreements, documents or instruments as may 


 


29

















 


be
required to be delivered hereunder, in each case, in form and substance
reasonably satisfactory to the Administrative Agent.


 


“U.K. Security
Agreements” means one or more security agreements or comparable security,
pledge or collateral documents or instruments relating to the Equity Interests
in or of, or assets of, any Subsidiary of Holdings under the laws of the United
Kingdom delivered in connection with the Existing Credit Agreement and such
additional agreements, documents or instruments as may be required to be
delivered hereunder, in each case, in form and substance reasonably
satisfactory to the Administrative Agent.


 


“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).


 


“U.S. Loan
Party” means any Loan Party that is organized under the laws of one of the
States of the United States of America.


 


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:


 


(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.


 


30





















 


(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 as in effect from time to time, 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 Borrower or the Required Lenders
shall so request, the Administrative Agent, the Lenders and the Borrower 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 Borrower shall provide to the
Administrative Agent and the Lenders financial 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 Borrower pursuant to 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.        Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to Hong Kong time (daylight or
standard, as applicable).


 


1.06.        Letter of Credit Amounts.  Unless otherwise specified herein, the amount
of a Letter of Credit at any time shall be deemed to be the stated amount of
such Letter of Credit in effect at such time; provided, however,
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 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.


 


1.07.        Currency Equivalents Generally.  Any amount specified in this Agreement (other
than in Articles II, IX and X) or any of the other Loan
Documents to be in Dollars shall also include the equivalent of such amount in
any currency other than Dollars, such equivalent amount thereof in the
applicable currency to be determined by the Administrative Agent at such 


 


31

















 


time on the basis of the Spot Rate (as defined below) for the purchase
of such currency with Dollars.  For
purposes of this Section 1.07, the “Spot Rate” for a currency
means the rate determined by the Administrative Agent 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 (in the jurisdiction to which such Person refers to confirm such rate)
prior to the date of such determination; provided that the
Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency.


 


ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01.        The Loans.  (a)  The
Term A Loans.  Each Term A Lender has
made a Term A Loan or has acquired a Term A Loan pursuant to the Existing
Credit Agreement.  Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.


 


(b)           The
Revolving Credit Borrowings.  Subject
to the terms and conditions set forth herein, each Revolving Credit Lender
severally agrees to make loans (each such loan, a “Revolving Credit Loan”)
to the Borrower from time to time, on any Business Day during the Availability
Period for the Revolving Credit Facility, in an aggregate amount not to exceed
at any time outstanding the amount of such Lender’s Revolving Credit
Commitment; provided, however, that after giving effect to any
Revolving Credit Borrowing, (i) the Total Revolving Credit Outstandings at such
time shall not exceed the Revolving Credit Facility at such time, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus
such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all L/C Obligations, plus such Revolving Credit
Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Revolving Credit Lender’s Revolving
Credit Commitment.  Within the limits of
each Revolving Credit Lender’s Revolving Credit Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01(b), prepay under Section 2.05, and reborrow under this Section
2.01(b).


 


2.02.        Borrowings and Continuations of Loans.  (a) 
Each Revolving Credit Borrowing and each continuation of Loans shall be
made upon the Borrower’s irrevocable notice to the Administrative Agent.  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 or continuation of Loans except in the case
of any Borrowing to be made on the Closing Date, which notice may be received
on the requested date of such Borrowings and the Borrower will endeavor to
provide any payment instructions for the proceeds of such Borrowings as soon as
reasonably practicable prior thereto (which may be in the form of a Committed
Loan Notice); provided, however, that if the Borrower wishes to
request 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. 


 


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seven Business Days prior to the requested date of such Borrowing or
continuation, whereupon the Administrative Agent shall give prompt notice to
the Appropriate Lenders of such request and determine whether the requested
Interest Period is acceptable to all of them. 
Not later than 11:00 a.m., five Business Days before the requested date
of such Borrowing or continuation, the Administrative Agent shall notify the
Borrower (which notice may be by telephone) whether or not the requested
Interest Period has been consented to by all the Appropriate Lenders.  Each notice by the Borrower pursuant to this Section
2.02(a) must be in the form of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing or continuation
of Loans shall be in a principal amount of $1,000,000 in the case of the
Revolving Credit Facility and, in each case, in a whole multiple of $500,000 in
excess thereof.  Each Committed Loan
Notice shall specify (i) whether the Borrower is requesting a Revolving Credit
Borrowing, or a continuation of Loans, (ii) the requested date of the Borrowing
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed or continued, and (iv) the duration of
the Interest Period with respect thereto. 
If the Borrower requests a Borrowing or continuation of 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.


 


(b)           Following
receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the
applicable Facility of the applicable Revolving Credit Loans, and if no timely
notice of a continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic continuation as
one-month Eurodollar Loans described in Section 2.02(a).  Each Appropriate Lender shall make the amount
of its Loan available to the Administrative Agent in immediately available
funds to such other account as the Administrative Agent may from time to time
specify to the Borrower and each Lender for this purpose, not later than 11
a.m. (Hong Kong time) on the Business Day specified in the applicable Committed
Loan Notice.  Upon satisfaction of the
applicable conditions set forth in Section 4.02, the Administrative
Agent shall make all funds so received available to the Borrower in like funds
as received by the Administrative Agent by wire transfer of such funds in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if,
on the date a Committed Loan Notice with respect to a Revolving Credit
Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then
the proceeds of such Revolving Credit Borrowing, first, shall be applied
to the payment in full of any such L/C Borrowings, and second, shall be
made available to the Borrower as provided above.


 


(c)           Except
as otherwise provided herein, a Loan may be continued only on the last day of
an Interest Period for such Loan.


 


(d)           The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Loans upon determination of
such interest rate.


 


(e)           There
shall not be more than six Interest Periods in effect in respect of the Term A
Facility.  After giving effect to all
Revolving Credit Borrowings and all continuations of 


 


33





















 


Revolving Credit Loans, there shall not be more than ten Interest
Periods in effect in respect of the Revolving Credit Facility.


 


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 Revolving Credit 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 for
the account of the Borrower, and to amend Letters of Credit previously issued
by it, in accordance with Section 2.03(b), and (2) to honor drawings
under the Letters of Credit; and (B) the Revolving Credit Lenders severally
agree to participate in Letters of Credit issued for the account of the
Borrower 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
Revolving Credit Outstandings at such time shall not exceed the Revolving
Credit Facility at such time, (y) the aggregate Outstanding Amount of the
Revolving Credit Loans of any Revolving Credit Lender, plus such Lender’s
Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Revolving Credit Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Credit Commitment, and (z) the Outstanding Amount of the L/C
Obligations at such time shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuance
or amendment of a Letter of Credit shall be deemed to be a representation by
the Borrower 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 Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed.


 


(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 Revolving 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 Revolving Credit 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
restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in 


 


34





















 


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;


 


(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 $500,000;


 


(D)          such Letter of Credit is to be
denominated in a currency other than Dollars;


 


(E)           such Letter of Credit contains any
provisions for automatic reinstatement of the stated amount after any drawing
thereunder; or


 


(F)           a default of any Lender’s obligations
to fund under Section 2.03(c) exists or any Revolving Credit Lender is
at such time a Defaulting Lender hereunder, unless the L/C Issuer has entered
into satisfactory arrangements with the Borrower 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 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 Revolving Credit 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 Borrower 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
Borrower.  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 


 


35





















 


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 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 (1) the
Letter of Credit to be amended; (2) the proposed date of amendment thereof
(which shall be a Business Day); (3) the nature of the proposed amendment; and
(4) such other matters as the L/C Issuer may reasonably require.  Additionally, the Borrower 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.


 


(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 Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Unless the
L/C Issuer has received written notice from any Revolving Credit 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 Borrower 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 Revolving Credit 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 Revolving Credit Lender’s Applicable Revolving Credit 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 Borrower 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 Borrower
and the Administrative Agent thereof. 
Not later than 11:00 a.m. on the date following any payment by the L/C
Issuer under a Letter of Credit (each such date, an “Honor Date”), the
Borrower shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing. 
If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Revolving Credit Lender of the
Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”),
and the amount of such Revolving Credit Lender’s Applicable Revolving Credit
Percentage thereof.


 


36





















 


(ii)           Each
Revolving Credit 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 at the Administrative Agent’s Office in an amount equal to its
Applicable Revolving Credit Percentage of the Unreimbursed Amount not later
than 1:00 p.m. on the Business Day specified in such notice by the
Administrative Agent (which shall be at least three Business Days after the
date of such notice), whereupon the Borrower shall be deemed to have incurred
from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount,
which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate. 
Each Revolving Credit Lender’s payment to the Administrative Agent for
the account of the L/C Issuer pursuant to this 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.


 


(iii)          Until
each Revolving Credit Lender funds its Revolving Credit 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 Revolving Credit Percentage of such amount shall be solely for the
account of the L/C Issuer.


 


(iv)          Each
Revolving Credit Lender’s obligation to make Revolving Credit 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 Borrower 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.  No such making of an L/C
Advance shall relieve or otherwise impair the obligation of the Borrower 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.


 


(v)           If
any Revolving Credit 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 greater of the Eurodollar Rate and a
rate determined by the L/C Issuer in accordance with banking industry rules on
interbank compensation.  A certificate of
the L/C Issuer submitted to any Revolving Credit Lender (through the Administrative
Agent) with respect to any amounts owing under this Section 2.03(c)(v)
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 Revolving Credit
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 Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), 


 


37





















 


the Administrative Agent will distribute to such Lender its Applicable
Revolving Credit Percentage thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Lender’s L/C
Advance was outstanding) 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 11.05 (including pursuant
to any settlement entered into by the L/C Issuer in its discretion), each
Revolving Credit Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Applicable Revolving Credit 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 Federal Funds Rate from time to time in effect.  Each such payment shall be deemed an L/C
Advance hereunder.   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
Borrower 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
Borrower or any Subsidiary may have at any time against any beneficiary or any
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; or


 


38














 


(v)           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 Borrower or any of its Subsidiaries.


 


The Borrower
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 Borrower’s instructions or other irregularity, the Borrower will
immediately notify the L/C Issuer. The Borrower 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 Borrower 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
Revolving Credit Lenders or the Required Revolving 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 Borrower 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, however, that this assumption is not intended
to, and shall not, preclude the Borrower’s pursuing such rights and remedies as
it 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,
however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower 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. Upon the
request of the Administrative Agent, if, as of the Letter of Credit Expiration
Date, any L/C Obligation for any reason remains outstanding, the Borrower
shall, in each case, immediately Cash Collateralize the then Outstanding Amount
of all L/C Obligations. 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), 


 


39





















 


“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
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 Borrower hereby grants to the Administrative Agent,
for the benefit of the L/C Issuer and the Revolving Credit 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 the bank or financial institution acting
as Administrative Agent or any affiliate thereof. If at any time the
Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than the Administrative Agent
or that the total amount of such funds is less than the aggregate Outstanding
Amount of all L/C Obligations, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to
be deposited as Cash Collateral, an amount equal to the excess of (x) such
aggregate Outstanding Amount over (y) the total amount of funds, if any, then
held as Cash Collateral that the Administrative Agent determines to be free and
clear of any such right and claim. Upon the drawing of any Letter of Credit for
which funds are on deposit as Cash Collateral, such funds shall be applied, to
the extent permitted under applicable law, to reimburse the L/C Issuer.


 


(h)           Applicability of ISP and UCP. Unless
otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of
Credit is issued, (i) the rules of the ISP shall apply to each standby Letter
of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance shall apply to each commercial Letter of
Credit.


 


(i)            Letter of Credit Fees. The
Borrower shall pay to the Administrative Agent for the account of each
Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to 1.00% per annum times 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 1.06. Letter
of Credit Fees shall be (A) computed on a quarterly basis in arrears and (B)
due and payable on the last Business Day of each June, September, December and
March, 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. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Revolving Lenders, while any Event of Default under Section
8.01(a) 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 Borrower shall pay directly
to the L/C Issuer for its own account a fronting fee with respect to each
Letter of Credit, at a rate per annum equal to 0.25%, computed on the daily
amount available to be drawn under such Letter of Credit on a quarterly basis
in arrears, and 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. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such 


 


40





















 


Letter of Credit shall be determined in
accordance with Section 1.06. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account 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.


 


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 (each such loan, a “Swing Line Loan”) to the
Borrower from time to time on any Business Day during the Availability Period
in respect of the Revolving Credit Facility 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 Revolving Credit Percentage of the Outstanding Amount of Revolving
Credit Loans and L/C Obligations of the Lender acting as Swing Line Lender, may
exceed the amount of such Lender’s Revolving Credit Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Revolving Credit Outstandings shall not exceed the Revolving Credit Facility at
such time, and (ii) the aggregate Outstanding Amount of the Revolving Credit
Loans of any Revolving Credit Lender at such time, plus such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding
Amount of all L/C Obligations at such time, plus such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing
Line Loans at such time shall not exceed such Lender’s Revolving Credit
Commitment, and provided  further that the Borrower 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 Borrower may borrow under this Section 2.04,
prepay under Section 2.05, and reborrow under this Section 2.04. Each
Swing Line Loan shall bear interest at a rate equal to the Eurodollar Rate for
the Interest Period available for Swingline Loans plus the Applicable
Margin. Immediately upon the making of a Swing Line Loan, each Revolving Credit
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 Revolving Credit Lender’s
Applicable Revolving Credit Percentage times the amount of such Swing
Line Loan.


 


(b)           Borrowing Procedures. Each
Swing Line Borrowing shall be made upon the Borrower’s irrevocable notice to
the Swing Line Lender and the Administrative Agent. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
10:00 a.m. Hong Kong time on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum of $500,000, and (ii)
the requested borrowing date, which shall be a Business Day. Each such notice
must be in the form of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. 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 (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 (in writing) of
the contents thereof. Unless the Swing Line Lender has received notice (by
telephone or in writing) from the Administrative 


 


41





















 


Agent (including at the request of any
Revolving Credit 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 Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in
immediately available funds.


 


(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 Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Revolving Credit Lender make a Loan in an amount equal to
such Lender’s Applicable Revolving Credit 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 Loans,
but subject to the unutilized portion of the Revolving Credit Facility and the
conditions set forth in Section 4.02. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Committed Loan Notice
promptly after delivering such notice to the Administrative Agent. Each
Revolving Credit Lender shall make an amount equal to its Applicable Revolving
Credit Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at Bank of America, N.A. in New York, Account
number 6550-0-90737 Chips U1D138124 not later than 1:00 p.m. on the day
specified in such Committed Loan Notice (which shall be at least three Business
Days after the date of such notice), whereupon, subject to Section
2.04(c)(ii), each Revolving Credit Lender that so makes funds available
shall be deemed to have made a Revolving Credit Loan to the Borrower 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 Revolving Credit 
Borrowing in accordance with Section 2.04(c)(i), the request for
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 Revolving Credit Lenders
fund its risk participation in the relevant Swing Line Loan and each Revolving
Credit 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 Revolving Credit 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 greater of the Eurodollar Rate and a rate
specified by the Swing Line Lender as reflecting its cost of funds. A
certificate 


 


42





















 


of the Swing Line Lender submitted to any
Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (iii) shall be conclusive absent manifest error.


 


(iv)          Each Revolving Credit Lender’s
obligation to make Revolving Credit 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
Borrower 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, however,
that each Revolving Credit Lender’s obligation to make Revolving Credit 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 Borrower to repay Swing Line
Loans, together with interest as provided herein.


 


(d)           Repayment of Participations. (i)  At any time after any Revolving Credit 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 Revolving Credit Lender its
Applicable Revolving Credit Percentage of such payment (appropriately adjusted,
in the case of interest payments, to reflect the period of time during which
such Lender’s risk participation was funded) 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 11.05 (including pursuant to any settlement entered
into by the Swing Line Lender in its discretion), each Revolving Credit Lender
shall pay to the Swing Line Lender its Applicable Revolving Credit 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 greater of the Eurodollar rate and a rate specified by the
Swing Line Lender as reflecting its cost of funds. 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
Borrower for interest on the Swing Line Loans. Until each Revolving Credit
Lender funds its Loan or risk participation pursuant to this Section 2.04
to refinance such Revolving Credit Lender’s Applicable Revolving Credit
Percentage of any Swing Line Loan, interest in respect of such Applicable
Revolving Credit Percentage shall be solely for the account of the Swing Line
Lender.


 


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


 


43

















 


2.05.        Prepayments.
(a)  Optional. (i)  The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay Loans
in whole or in part without premium or penalty; provided that (A) such
notice must be received by the Administrative Agent not later than 11:00 a.m.
(1) three days prior to any date of prepayment of Loans in the case of the
Revolving Credit Facility and five days prior to any date of prepayment of
Loans in the case of the Term A Facility and (B) any prepayment of Loans shall
be in a principal amount of $3,000,000 in the case of the Term A Facility
(except for any prepayments made pursuant to Section 4.01(b)(iii)) and
$1,000,000 in the case of the Revolving Credit Facility and, in each case, in a
whole multiple of $500,000 in excess thereof or, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and
amount of such prepayment. The Administrative Agent will promptly notify each
Lender of its receipt of each such notice, and of the amount of such Lender’s
ratable portion of such prepayment (based on such Lender’s Applicable
Percentage in respect of the relevant Facility) (except for any prepayments
made pursuant to Section 4.01(b)(iii)). If such notice is given by the
Borrower, the 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 Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05. Each
prepayment of the outstanding Term A Loans pursuant to this Section 2.05(a)
shall be applied first, to the next two remaining principal repayment
installments thereof and second to the remaining principal repayment
installments thereof on a pro rata basis, and each such prepayment shall be
paid to the Lenders in accordance with their respective Applicable Percentages
in respect of each of the relevant Facilities (except for any prepayments made
pursuant to Section 4.01(b)(iii)).


 


(ii)           The Borrower 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 (A) 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 (B) any such prepayment shall be
in a minimum principal amount equal to the lesser of $100,000 and the aggregate
principal amount of all Swingline Loans then outstanding. Each such notice
shall specify the date and amount of such prepayment. If such notice is given
by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any such prepayment shall be accompanied by all accrued interest on such Swing
Line Loan and any additional amounts required pursuant to Section 3.05.


 


(b)           Mandatory. (i)  If any Loan Party or any of its Subsidiaries
Disposes of any property or assets (other than any Disposition of any property
or assets permitted by Section 7.05(a), (b), (c) (to
the extent such proceeds are applied pursuant to clause (ii) thereof), (d),
(e), (f), (g), (h) and (i) (to the extent
the proceeds have been paid to any insurer or other similar entity) which in
the aggregate for all Dispositions since the Closing Date results in the
realization by such Loan Party or such Subsidiary of Net Cash Proceeds
(determined as of the date of such Disposition, whether or not such Net Cash
Proceeds are then received by such Loan Party or such Subsidiary) in excess of
$25,000,000, the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of all Net Cash Proceeds received therefrom immediately upon
receipt thereof by such Loan Party or such Subsidiary; provided, however,
that, with respect to any Net Cash Proceeds realized under a Disposition
described in this Section 2.05(b)(i), 


 


44





















 


at the option of the Borrower (as elected by
the Borrower in writing to the Administrative Agent on or prior to the date of
such Disposition), and so long as no Default shall have occurred and be
continuing, such Loan Party or such Subsidiary may reinvest all or any portion
of such Net Cash Proceeds in operating assets so long as within 365 days
following receipt of such Net Cash Proceeds, the purchase of such assets with
such proceeds shall have been consummated (as certified by the Borrower in
writing to the Administrative Agent); provided  further, however,
that any Net Cash Proceeds not so reinvested shall be immediately applied to
the prepayment of the Loans as set forth in this Section 2.05.


 


(ii)           Upon the incurrence or issuance by
any Loan Party or any of its Subsidiaries of any Indebtedness (other than
Indebtedness expressly permitted to be incurred or issued pursuant to Section
7.02), the Borrower shall prepay an aggregate principal amount of Loans
equal to 100% of all Net Cash Proceeds received therefrom immediately upon
receipt thereof by such Loan Party or such Subsidiary.


 


(iii)          Upon any proceeds of casualty
insurance, condemnation awards, indemnity payments or similar proceeds received
by or paid to or for the account of any Loan Party or any of its Subsidiaries
in excess of $25,000,000 and not otherwise included in clause (ii) of
this Section 2.05(b), the Borrower shall prepay an aggregate
principal amount of Loans equal to 100% of all Net Cash Proceeds received
therefrom immediately upon receipt thereof by such Loan Party or such
Subsidiary; provided, however, that with respect to any proceeds
of insurance, condemnation awards (or payments in lieu thereof) or indemnity
payments, at the option of the Borrower (as elected by the Borrower in writing
to the Administrative Agent on or prior to the date of receipt of such
insurance proceeds, condemnation awards or indemnity payments, and so long as
no Default shall have occurred and be continuing, such Loan Party or such
Subsidiary may apply within 365 days after the receipt of such cash proceeds to
replace or repair the equipment, fixed assets or real property in respect of
which such cash proceeds were received; provided  further, however,
that any cash proceeds not so applied shall be immediately applied to the
prepayment of the Loans as set forth in this Section 2.05.


 


(iv)          If for any reason the Total Revolving
Credit Outstandings at any time exceed the Revolving Credit Facility at such
time, the Borrower shall immediately prepay Revolving Credit Loans and Swing
Line Loans and Unreimbursed Amounts and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however,
that the Borrower shall not be required to Cash Collateralize the L/C
Obligations pursuant to this Section 2.05(b)(iv) unless after the
prepayment in full of the Revolving Credit Loans and Swing Line Loans the Total
Revolving Credit Outstandings exceed the Revolving Credit Facility at such
time.


 


(v)           Each prepayment of Loans pursuant to
this Section 2.05(b) shall be applied, first, to the Term A
Facility and to the principal repayment installments thereof on a pro rata
basis and, second, to the Revolving Credit Facility in the manner set
forth in clause (vi) of this Section 2.05(b).


 


(vi)          Prepayments of the Revolving Credit
Facility made pursuant to clause (i), (ii), (iii), or (iv)
of this Section 2.05(b), first, shall be applied ratably to the
Unreimbursed Obligations and the Swing Line Loans, second, shall be
applied ratably to the outstanding 


 


45





















 


Revolving Credit Loans, and, third,
shall be used to Cash Collateralize the remaining L/C Obligations; and, in the
case of prepayments of the Revolving Credit Facility required pursuant to clause
(i), (ii), (iii), or (iv) of this Section 2.05(b),
the amount remaining, if any, after the prepayment in full of all Unreimbursed
Obligations, Swing Line Loans and Revolving Credit Loans outstanding at such
time and the Cash Collateralization of the remaining L/C Obligations in full
(the sum of such prepayment amounts, cash collateralization amounts and
remaining amount being, collectively, the “Reduction Amount”) may be
retained by the Borrower for use in the ordinary course of its business, and
the Revolving Credit Facility shall be automatically and permanently reduced by
the Reduction Amount as set forth in Section 2.06(b)(ii). Upon the
drawing of any Letter of Credit that has been Cash Collateralized, the funds
held as Cash Collateral shall be applied (without any further action by or
notice to or from the Borrower or any other Loan Party) to reimburse the L/C
Issuer or the Revolving Credit Lenders, as applicable.


 


2.06.        Termination
or Reduction of Revolving Credit Commitments. (a)  Optional. The Borrower may, upon
notice to the Administrative Agent, terminate the unused portions of the Letter
of Credit Sublimit or the unused Revolving Credit Commitments, or from time to
time permanently reduce the unused portions of the Letter of Credit Sublimit or
the unused Revolving Credit 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 $3,000,000 or any whole
multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not
terminate or reduce the unused portions of the Letter of Credit Sublimit or the
unused Revolving Credit Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Revolving Credit Outstandings would exceed the
Revolving Credit Facility.


 


(b)           Mandatory. (i)  The Revolving Credit Facility shall be
automatically and permanently reduced on each date on which the prepayment of Revolving
Credit Loans outstanding thereunder is required to be made pursuant to Section
2.05(b)(i), (ii), (iii), or (iv) by an amount equal to
the applicable Reduction Amount.


 


(ii)           If after giving effect to any
reduction or termination of unused Revolving Credit Commitments under this Section
2.06, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the
Revolving Credit Facility at such time, the Letter of Credit Sublimit or the
Swing Line Sublimit, as the case may be, shall be automatically reduced by the
amount of such excess.


 


(c)           Application of Revolving Credit
Commitment Reductions; Payment of Fees. The Administrative Agent will
promptly notify the Lenders of any termination or reduction of unused portions
of the Letter of Credit Sublimit or the unused Revolving Credit Commitment
under this Section 2.06. Upon any reduction of the unused Revolving
Credit Commitments, the Revolving Credit Commitment of each Revolving Credit
Lender shall be reduced by such Lender’s Applicable Revolving Credit Percentage
of such reduction amount. All fees accrued until the effective date of any
termination of the Revolving Credit Commitments shall be paid on the effective
date of such termination.


 


46





















 


2.07.        Repayment
of Loans. (a)  Term A Loans. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term A Lenders the aggregate principal amount of all Term A Loans outstanding
on the following dates in the respective amounts set forth opposite such dates
(which amounts shall be reduced as a result of the application of prepayments
in accordance with the order of priority set forth in Section 2.05(b):


 




	
  Date

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  September 30, 2006

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  December 31, 2006

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  March 31, 2007

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  June 30, 2007

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  September 30, 2007

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  December 31, 2007

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  March 31, 2008

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  June 30, 2008

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  September 30, 2008

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  March 31, 2009

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  June 30, 2009

  	
   

  	
  $

  	
  5,000,000

  	
   

  
	
  September 30, 2009

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  March 31, 2010

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  June 30, 2010

  	
   

  	
  $

  	
  10,000,000

  	
   

  
	
  September 30, 2010

  	
   

  	
  $

  	
  12,500,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  12,500,000

  	
   

  
	
  March 31, 2011

  	
   

  	
  $

  	
  12,500,000

  	
   

  
	
  Maturity Date

  	
   

  	
  $

  	
  12,500,000

  	
   

  
									






 


(b)           Revolving Credit Loans. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Revolving Credit Lenders on the Maturity Date for the Revolving Credit Facility
the aggregate principal amount of all Revolving Credit Loans outstanding on
such date.


 


(c)           Swing Line Loans. The Borrower
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 for the
Revolving Credit Facility.


 


2.08.        Interest.
(a)  Subject to the provisions of Section
2.08(b), each Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Margin and 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 Eurodollar Rate
for the Interest Period available for Swingline Loans plus the
Applicable Margin.


 


(b)           (i) 
While any Default under Section 8.01(a) exists, the Borrower
shall pay interest on the principal amount of all outstanding Obligations
hereunder and on the amount of 


 


47





















 


any Obligations that are not paid when due,
in each case at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.


 


(ii)           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 Sections 2.03(i) and (j):


 


(a)           Commitment Fee. The Borrower
shall pay to the Administrative Agent for the account of each Revolving Credit
Lender in accordance with its Applicable Revolving Credit Percentage, a
commitment fee equal to the Applicable Commitment Fee Percentage times
the actual daily amount by which the aggregate Revolving Credit Commitments
exceed the sum of (A) the Outstanding Amount of Revolving Credit Loans and
Swing Line Loans plus (B) the Outstanding Amount of L/C Obligations; provided,
however, that any commitment fee accrued with respect to any of the
Revolving Credit Commitments of a Defaulting Lender during the period prior to
the time such Lender became a Defaulting Lender and unpaid at such time shall
not be payable by the Borrower so long as such Lender shall be a Defaulting
Lender except to the extent that such commitment fee shall otherwise have been
due and payable by the Borrower prior to such time; and provided  further
that no commitment fee shall accrue on any of the Revolving Credit Commitments
of a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The
commitment fee shall accrue at all times from and after the Closing Date and
shall be due and payable quarterly in arrears on the last Business Day of each
June, September, December and March commencing with the first such date to
occur after the Closing Date, and on the Maturity Date for the Revolving Credit
Facility. The commitment fee shall be calculated quarterly in arrears, and if
there is any change in the Applicable Margin during any quarter, the actual
daily amount shall be computed and multiplied by the Applicable Margin
separately for each period during such quarter that such Applicable Margin was
in effect.


 


(b)           Other Fees. (i)  The Borrower shall pay to the Joint Mandated
Lead Arrangers and the Administrative Agent for their own respective accounts
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.


 


(ii)           The Borrower shall
pay to the Administrative Agent such fees as shall have been separately agreed
upon in writing in the amounts and at the times so specified. 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 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).


 


48

















 


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 Borrower 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 Borrower
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 (set forth in the
Register) shall control in the absence of manifest error. Upon the request of
any Lender made through the Administrative Agent, the Borrower shall execute
and deliver to such Lender (through the Administrative Agent) a Note, which
shall evidence such Lender’s Loans in addition to such accounts or records. Each
Lender may attach schedules to its Note and endorse thereon the date, amount
and maturity of its Loans and payments with respect thereto.


 


(b)           In addition to the accounts and
records referred to in Section 2.11(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 Borrower shall be made without condition or deduction for any counterclaim,
defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments (including, without limitation, payments of principal, interest,
fees, indemnification and Cash Collateral) by the Borrower hereunder shall be
made to the Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at the Administrative Agent’s Office in Dollars and
in immediately available funds not later than 2:00 p.m. on the date specified
herein. The Administrative Agent will promptly distribute to each Lender its
Applicable Percentage in respect of the relevant Facility (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 after 2:00 p.m. shall 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 the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day,
and applicable interest or fee shall continue to accrue.


 


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(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 Borrowing that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with Section 2.02 and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event, if a
Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from
and including the date such amount is made available to the 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 greater of the rate specified by
the Administrative Agent as reflecting its cost of funds and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to the relevant Loans. If the 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
the Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any
claim the Borrower may have against a Lender that shall have failed to make
such payment to the Administrative Agent. Each Loan shall be made and each
Letter of Credit shall be denominated in Dollars and no Secured Parties (other
than Hedge Banks) shall have any obligations hereunder in any currency other
than in Dollars.


 


(ii)           Payments by Borrower; Presumptions
by Administrative Agent. Unless the Administrative Agent shall have
received notice from the Borrower prior to the time at which any payment is due
to the Administrative Agent for the account of the Lenders or the L/C Issuer
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Appropriate Lenders or the L/C Issuer, as the case may be, the amount due. In
such event, if the Borrower has not in fact made such payment, then each of the
Appropriate 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 immediately available 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
greater of the rate specified by the Administrative Agent as reflecting its
cost of funds and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.


 


A
notice of the Administrative Agent to any Lender or the 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 as provided in the foregoing provisions
of this Article II, and such funds are not made available to the
Borrower by the Administrative Agent because the conditions to the applicable
Credit Extension set forth in 


 


50





















 


Article IV are not
satisfied or waived in accordance with the terms hereof, the Administrative
Agent shall 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 Loans, to fund participations
in Letters of Credit and Swing Line Loans and to make payments pursuant to Section
11.04(c) are several and not joint. The failure of any Lender to make any
Loan, to fund any such participation or to make any payment under Section 11.04(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 Loan, to
purchase its participation or to make its payment under Section 11.04(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.


 


(f)            Insufficient Payment. Whenever
any payment received by the Administrative Agent under this Agreement or any of
the other Loan Documents is insufficient to pay in full all amounts due and
payable to the Administrative Agent and the Lenders under or in respect of this
Agreement and the other Loan Documents on any date, such payment shall be
distributed by the Administrative Agent and applied by the Administrative Agent
and the Lenders in the order of priority set forth in Section 8.03.


 


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 on any of the 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 Loans or
participations and accrued interest thereon greater than its pro  rata
share thereof of the applicable Facility 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
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 (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of
this Agreement or (B) any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than to the 


 


51

















 


Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).


 


Each
Loan Party 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
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.


 


2.14.        Incremental
Facility. (a)  The Borrower may at
any time prior to 180th day prior to the Maturity Date with respect
to the Term A Facility or the Revolving Credit Facility, as the case may be,
but in any event not more than on three occasions, by notice to the
Administrative Agent, request the addition of a new term loan facility (each,
an “Incremental Term Facility”) or an increase in the Revolving Credit
Facility (each, a “Revolving Facility Increase” and, together with the
Incremental Term Facilities, an “Incremental Facility”) pursuant to
additional commitments (the “Incremental Commitments”) in an aggregate
amount not to exceed $50,000,000 to be effective as of a date that is at least
90 days prior to the scheduled Maturity Date of the Term A Facility or the
Revolving Credit Facility then in effect (the “Increase Date”) as
specified in the related notice to the Administrative Agent; provided, however,
that (i) in no event shall the aggregate amount of all of the Incremental
Commitments exceed $50,000,000, (ii) each new Incremental Facility shall be in
an aggregate amount of not less than $5,000,000, (iii) on the date of any such
request by the Borrower for an Incremental Facility and on the related Increase
Date, the applicable conditions set forth in Section 4.02 shall be
satisfied, (iv) such Incremental Facility shall be used for working capital,
acquisitions and other general corporate purposes not in contravention of any
Law or Loan Document, (v) the final maturity of any Incremental Term
Facilities shall be equal to or greater than the final maturity of the Term A
Facility and (vi) any Incremental Facility shall be either (A) an increase in
the Term A Facility or the Revolving Credit Facility existing prior to the
Increase Date, in which case the requirements of Section 2.14(e) shall
be satisfied or (B) in the case of an Incremental Term Facility, a new facility
on the same terms as the Term A Facility except as to interest rates and the
final maturity.


 


(b)           The Administrative Agent shall
promptly notify the Lenders of a request by the Borrower for Incremental
Commitments, which notice shall include (i) the proposed amount, the interest
rates and the final maturity of the Incremental Facility, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in the
Incremental Facility must commit to an Incremental Commitment (the “Commitment
Date”). Each Lender that is willing to participate in such Incremental
Facility (each an “Increasing Lender”) shall give written notice to the
Administrative Agent on or prior to the Commitment Date of the amount of its
Incremental Commitment. If the Incremental Commitments provided by such Lenders
exceed the amount of the requested Incremental Facility, the Incremental
Commitments shall be allocated among the Lenders willing to participate therein
in such amounts as determined by the Administrative Agent. The failure of any
Lender to respond shall be deemed to be a refusal of such Lender to participate
in such Incremental Facility.


 


(c)           Promptly following the applicable
Commitment Date, the Administrative Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to 


 


52





















 


participate in the requested Incremental
Facility. If the aggregate amount by which the Lenders are willing to
participate in any requested Incremental Facility on any Commitment Date is
less than the requested amount of such Incremental Facility, then the
Administrative Agent may extend offers to one or more Eligible Assignees (each
an “Assuming Lender” and together with the Increasing Lenders, the “Incremental
Facility Lenders”) to participate in any portion of the Incremental
Facility that has not been committed to by the Lenders as of the applicable
Commitment Date;  provided, however, that
the Commitment of each such Eligible Assignee shall be in an amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof.


 


(d)           On or before the Increase Date, the
Administrative Agent shall have received the following, each dated such date:


 


(i)            (A) certified copies of resolutions
of the Board of Directors of the Borrower and Holdings approving the
Incremental Facility and the corresponding modifications to this Agreement and
(B) an opinion of U.S. and Luxembourg counsel for the Borrower and Holdings, in
a form reasonably satisfactory to the Administrative Agent;


 


(ii)           (A) confirmation from each Lender of
the amount of its Incremental Commitment in a writing reasonably satisfactory
to the Borrower and the Administrative Agent or (B) an assumption agreement
from each Assuming Lender, if any, in form and substance satisfactory to the
Assuming Lender, the Borrower and the Administrative Agent (each an “Assumption Agreement”), duly
executed by such Assuming Lender, the Administrative Agent and the Borrower;
and


 


(iii)          such other documents, including an
amendment to this Agreement, as the Administrative Agent may reasonably
request.


 


On the applicable Increase Date, upon fulfillment of
the conditions set forth or referred to in Section 2.14(a) and in the
immediately preceding sentence of this Section 2.14(d), the
Administrative Agent shall notify the Incremental Facility Lenders and the
Borrower, on or before 11:00 a.m., by telecopier, of the occurrence of the
Incremental Facility to be effected on the related Increase Date and shall
record in the Register the relevant information with respect to each
Incremental Facility Lender on such date. To the extent the interest rate
payable in respect of any Incremental Term Facility (whether in the form of
interest, fees (other than underwriting fees), original issue discount or any
combination thereof) at any time shall be more than 12.5 basis points
greater than the interest rate of the Term A Facility and the Revolving Credit
Facility then in effect, the definition of “Applicable Margin” set forth in Section
1.01 hereof shall be automatically amended so that the interest rate of the
Term A Facility and the Revolving Credit Facility then in effect is no less
than the interest rate payable in respect of such Incremental Term Facility.


 


(e)           To the extent the Incremental
Facility Lenders making new loans under an Incremental Facility add the
aggregate principal amount of such new loans to the then outstanding Eurodollar
Rate Loans, it is acknowledged that the effect thereof may result in such new
loans having short Interest Periods (i.e. an Interest Period that will begin
during an Interest Period then applicable to the outstanding Eurodollar Rate
Loans and which will end on the last day of such Interest Period). In
connection therewith, the Borrower may agree to compensate the 


 


53





















 


Incremental Facility Lenders making the loans
under the new Incremental Facility for funding Eurodollar Rate Loans during an
existing Interest Period on such basis as may be agreed by the Borrower and the
respective Lender or Lenders.


 


(f)            To the extent any Incremental Term
Facility constitutes a new facility separate from the Term A Facility, its
weighted average life to maturity shall be no shorter than the Term A Facility
and it shall be entitled to the benefit of prepayments under Section 2.05 (i)
either ratably with the Term A Facility or following the prepayment in full of
the Term A Facility and (ii) prior to or following prepayment of the Revolving
Credit Facility, in each case of clauses (i) and (ii) as the Borrower and the
Incremental Facility Lenders may agree. Except as specifically set forth in
this Section 2.14, each such Incremental Term Facility shall constitute a “Term
A Facility”, each Lender under such Incremental Term Facility shall constitute
a “Term A Lender”, and each Loan advanced under such Incremental Term Facility
shall constitute a “Term A Loan” for all purposes under this Agreement.


 


(g)           On each Increase Date for any
Revolving Facility Increase, in the event any Revolving Credit Loans are then
outstanding, (i) each Incremental Facility Lender shall make available to the
Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other Revolving
Credit Lenders, in order to cause, after giving effect to the applicable Revolving
Facility Increase and the application of such amounts to make payments to such
other Revolving Credit Lenders, the Revolving Credit Loans to be held ratably
by all Revolving Credit Lenders as of such date in accordance with their
respective Revolving Credit Commitments, (ii) the Borrower shall be deemed to
have prepaid and reborrowed all outstanding Revolving Credit Loans made to it
as of such Increase Date (with each such borrowing to consist of Revolving
Credit Loans, with related Interest Periods if applicable, specified in a
notice delivered by the Borrower in accordance with the requirements of Section
2.02) and (iii) the Borrower shall pay to the Revolving Credit Lenders the
amounts, if any, payable under Section 3.05) as a result of such prepayment.
To the extent that there are participations in Letters of Credit, the
Administrative Agent shall allocate to each Revolving Credit Lender their
respective pro rata portion of the aggregate L/C Obligations at such time
(after giving effect to the Revolving Facility Increase).


 


(h)           The Borrower and the Administrative
Agent are authorized to enter into such amendments to the Loan Documents as may
be necessary or desirable to implement the provisions of this Section 2.14.
The Administrative Agent shall as soon as practicable notify the Lenders of
such amendments to the Loan Documents.


 


(i)            This Section 2.14 shall
supersede any provisions in Sections 2.13 or 11.01 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 Borrower or Holdings
hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any 


 


54

















 


Indemnified Taxes or Other Taxes, provided that
if the Borrower or Holdings shall be required by applicable law to deduct any
Indemnified Taxes (including 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, any Lender or the 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) the Borrower or Holdings, as the case may be,
shall make such deductions and (iii) the Borrower or Holdings, as the case may
be, shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


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


 


(c)           Indemnification by the Borrower
and Holdings. The Borrower and Holdings shall, jointly and severally,
indemnify the Administrative Agent, each Lender and the L/C Issuer, within 10
days after written demand therefor, for the full amount of any Indemnified
Taxes or Other Taxes (including Indemnified Taxes, Other Taxes or any other
taxes other than Excluded 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 liability delivered to the 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 and in any event within 30 days after any payment of Indemnified
Taxes or Other Taxes by the Borrower or Holdings, as the case may be, to a
Governmental Authority, the Borrower or Holdings, as the case may be, 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 the Borrower or Holdings, as the
case may be, 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 Borrower and Holdings (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, Holdings 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; provided however (1) that such forms would not, in the
good faith judgment of such Lender, require such Lender to disclose any
confidential or proprietary information, (2) such Lender is legally entitled to
complete, execute and deliver such forms, certificates or other documents and
(3) the completion, execution or delivery of such forms, certificates or other
documents would not, in the good faith judgment of the Lender, result in the
imposition on the 


 


55





















 


Lender of any additional material legal or
regulatory burdens, any additional material out-of-pocket costs not indemnified
hereunder, or be otherwise materially disadvantageous to such Lender. In
addition, any Lender, if requested by the Borrower, Holdings or the
Administrative Agent, shall deliver such other documentation prescribed by
applicable law or reasonably requested by the Borrower, Holdings or the
Administrative Agent as will enable the Borrower, Holdings or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


(f)            Treatment of Certain Refunds.
If the Administrative Agent, any Lender or the L/C Issuer determines, in its
reasonable discretion, that it has received a refund or a credit in lieu
thereof (other than a foreign tax credit) of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or Holdings, as the case may be,
or with respect to which the Borrower or Holdings has paid additional amounts
pursuant to this Section, it shall pay to the Borrower or Holdings, as the case
may be, an amount equal to such refund (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower or Holdings 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 the Borrower or Holdings, as the case may be,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to the Borrower or Holdings (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer if the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. Notwithstanding the foregoing, nothing
in this section shall be construed to require the Administrative 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 the Borrower,
Holdings or any other Person.


 


3.02.        Illegality.
If any Lender determines 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 Loans, or to determine or
charge interest rates based upon the Eurodollar 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 in the London interbank
market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay all Loans of such
Lender, either on the last day of the Interest Period therefore (subject to the
Borrower’s right to replace such Lender pursuant to Section 11.13), if
such Lender may lawfully continue to maintain such Loans to such day, or
immediately, if such Lender may not lawfully continue to maintain such Loans. Upon
any such prepayment, the Borrower shall also pay accrued interest on the amount
so prepaid.


 


3.03.        Inability
to Determine Rates. If the Required Lenders determine that for any reason
(a) Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of their Loans,
(b) adequate and reasonable 


 


56

















 


means do not exist for determining the Eurodollar Rate
for any Interest Period, or (c) the Eurodollar Rate for any Interest Period
does not adequately and fairly reflect the cost to such Lenders of funding
their Loans, or if at any time the Eurodollar Rate is required to be determined
on rates provided by the Reference Banks and fewer than two Reference Banks
provide such a rate to the Administrative Agent, the Administrative Agent will
promptly so notify the Borrower and each Lender. In such event, the rate of
interest on each Lender’s Loans for the applicable Interest Period shall be a
rate per annum mutually agreed by the Borrower and the Administrative Agent in
good faith as soon as practicable and in any event before interest is due to be
paid in respect of that Interest Period. If no such rate is agreed, the rate of
interest on each Lender’s Loans for the applicable Interest Period shall be
equal to the sum of (x) the Applicable Margin and (y) a rate per annum that
compensates each Lender for the cost of funding its Loans, as notified to the
Administrative Agent and the Borrower.


 


3.04.        Increased
Costs; Reserves on Loans. (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 or for the account of,
or credit extended or participated in by, any Lender (except any reserve
requirement contemplated by Section 3.04(e)) 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
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); or


 


(iii)          impose on any
Lender or the L/C Issuer or the London interbank market any other condition,
cost or expense affecting this Agreement or 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 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 Borrower will 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 


 


57





















 


of this Agreement, the Revolving Credit
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 Borrower will 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.


 


(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 Borrower shall be conclusive absent manifest error. The
Borrower shall 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 the Borrower shall not 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 nine months prior to the date
that such Lender or the L/C Issuer, as the case may be, notifies the Borrower
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 nine-month period referred to above shall
be extended to include the period of retroactive effect thereof).


 


(e)           Reserves on Loans. The
Borrower shall pay to each Lender, as long as such Lender shall be required to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Loan
equal to the actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive), which shall be due and payable on each date on which interest
is payable on such Loan, provided the Borrower shall have received at
least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 10 days from receipt of such notice.


 


3.05.        Compensation
for Losses. Upon demand of any Lender or the L/C Issuer (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly 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, payment or
prepayment of any Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by 


 


58





















 


reason of acceleration, by reason of funding
by any Lender of its risk participation in a Letter of Credit or a Swing Line
Loan, or otherwise);


 


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


 


(c)           any assignment of a Loan on a day
other than the last day of the Interest Period therefor as a result of a
request by the Borrower pursuant to Section 11.13;


 


including any loss of anticipated profits and any loss
or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which
such funds were obtained. The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


3.06.        Mitigation
Obligations; Replacement of Lenders. (a) 
Designation of a Different Lending Office. If any Lender requests
compensation under Section 3.04, or the 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 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, in the reasonable judgment of such Lender,
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
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all reasonable costs and expenses
incurred by any Lender in connection with any such designation or assignment.


 


(b)           Replacement of Lenders. If (i)
any Lender requests compensation under Section 3.04, (ii) if the
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
(iii) the Loans held by any Lender are required to be prepaid under Section
3.02, the Borrower may replace such Lender in accordance with Section
11.13.


 


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


 


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 or
Collateral Agent’s receipt, as applicable, of the following, each of which
shall be originals or telecopies (followed promptly by originals) 


 


59





















 


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, the Collateral Agent and each of the Lenders:


 


(i)            executed counterparts of this
Agreement by the Borrower and Holdings;


 


(ii)           a Note executed by the Borrower in
favor of each Lender requesting a Note;


 


(iii)          an executed consent and ratification
(the “Consent”) of the continued validity of the Collateral Documents and
the Subsidiary Guaranty, such consent and ratification to be in the form
attached hereto as Exhibit F;


 


(iv)          an executed Lender Consent;


 


(v)           such Guaranty Supplements and
Collateral Documents identified on Schedule 4.01(a)(v);


 


(vi)          such certificates of resolutions or
other action, incumbency certificates and/or other certificates of Responsible
Officers of the Borrower, Holdings and each Loan Party identified on Schedule 5.01(b)
as being subject to clauses (vi), (vii), (ix) and (x) of this Section
4.01(a) (the “Specified Loan Parties”), 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 or is to be a party;


 


(vii)         (A) certified copies of such charter
and organizational documents for the Borrower, Holdings and each Specified Loan
Party, including, without limitation, articles of incorporation, articles of
formation, bylaws, operating agreements, partnership agreements, and any
equivalent of the foregoing documents, and (B) such documents and
certifications as the Administrative Agent may reasonably require to evidence
that (i) each of the Borrower, Holdings and each Specified Loan Party is duly
organized or formed, (ii) each of the Borrower and Holdings is validly
existing, in good standing and qualified to engage in business in Luxembourg,
and (iii) Holdings and each of its Subsidiaries are 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;


 


(viii)        a favorable opinion of Paul, Weiss,
Rifkind, Wharton & Garrison LLP, counsel to the Loan Parties, addressed to
the Administrative Agent and each Lender, in substantially the form attached
hereto as Exhibit G-1;


 


(ix)           a favorable opinion of each of the
local counsel set forth on Schedule 4.01(a)(ix), addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit
G-2 and such other matters concerning the Loan Parties and the Loan
Documents as the Administrative Agent may reasonably request, in each case, as
applicable in the jurisdiction in which such local counsel is admitted to
practice;


 


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(x)            a certificate of a Responsible
Officer of the Borrower, Holdings and each Specified 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;


 


(xi)           a certificate signed by a Responsible
Officer of Holdings 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 Statements that
has had or could be reasonably expected to (x) have, either individually or in
the aggregate, a Material Adverse Effect, (y) materially impair the rights and
remedies of the Administrative Agent or Collateral Agent or any Lender under
any Loan Document or the ability of any Loan Party to perform its obligations under
any Loan Document to which it is a party or (z) materially adversely affect the
legality, validity, binding effect or enforceability against any Loan Party of
any Loan Document to which it is a party; and


 


(xii)          at least three Business Days prior to
the Closing Date, a duly completed Committed Loan Notice with respect to the
Borrowing to be made on the Closing Date.


 


(b)           (i) All amounts owing under the Fee
Letter to the Administrative Agent, the Arranger and the Lenders on or before
the Closing Date shall have been paid, (ii) all interest, fees, and scheduled
repayments of the Term A Loans to be made on the Closing Date pursuant to the
Existing Credit Agreement shall have been paid, and (iii) repayments of the
Term A Loans (together with interest thereon and other amount that may be due)
under the Existing Credit Agreement to the extent that the principal amounts
outstanding under such Term A Loans exceed $150,000,000 shall have been made
solely to Bank of America, N.A.


 


(c)           Unless waived by the Administrative
Agent, the Borrower shall have paid all fees, charges and disbursements of
counsel to 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 Borrower and the Administrative Agent).


 


(d)           The Closing Date shall have occurred
on or before June 30, 2006.


 


(e)           The Lenders shall have received
annual forecasts of balance sheets, income statements and cash flow statements
of Holdings and its Subsidiaries on a consolidated basis and for the operations
of Holdings and its Subsidiaries in India on a stand alone basis for the years
ended December 31, 2006 through and including December 31, 2011 with respect to
Holdings and its Subsidiaries and for the years ended March 31, 2007 through
March 31, 2012 with respect to the operations of Holdings and its Subsidiaries
in India, in each case, prepared in good faith on the basis of the assumptions
stated therein, which assumptions are fair in light of the then existing
conditions.


 


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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 or the
Lender Consent, as the case may be, 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 is subject to the following conditions precedent:


 


(a)           The representations and warranties of
the Borrower and each other Loan Party contained in Article V or any
other Loan Document, or which are contained 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, except 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 Sections 5.05(a) and (b)
shall be deemed to refer to the most recent statements furnished pursuant to Sections
6.01(a), (b), and (c) respectively.


 


(b)           No Default shall exist or would
result from such proposed Credit Extension or from 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.


 


Each
Request for Credit Extension submitted by the Borrower 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


 


Each
of Holdings and the Borrower represents and warrants to the Administrative
Agent and the Lenders that:


 


5.01.        Existence,
Qualification and Power; Compliance with Laws. (a)  Each Loan Party and each of its Subsidiaries
(i) is duly organized or formed, validly existing and in good standing under
the Laws of the jurisdiction of its incorporation or organization, (ii) has all
requisite power and authority and all requisite governmental licenses,
authorizations, consents and approvals to (A) own or lease its assets and carry
on its business and (B) execute, deliver and perform its obligations under the
Loan Documents to which it is a party and consummate the Transaction, (iii) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business 


 


62

















 


requires such qualification or license, and (iv) is in
compliance with all Laws; except in each case referred to in clause (ii)(A),
(iii) or (iv), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


(b)           Set forth on Schedule 5.01(b)
hereto is a complete and accurate list of all Loan Parties, showing as of the
date hereof (as to each Loan Party) the jurisdiction of its incorporation, the
address of its principal place of business and its U.S. taxpayer identification
number or, in the case of any non-U.S. Loan Party that does not have a U.S.
taxpayer identification number, its unique identification number issued to it
by the jurisdiction of its incorporation. The copy of the charter of the
Borrower, Holdings and each Specified Loan Party and each amendment thereto
provided pursuant to Section 4.01(a)(vii) is a true and correct copy of
each such document as of the Closing Date, each of which is valid and in full
force and effect and since the Closing Date has not been amended, modified,
supplemented, restated or replaced except as permitted under Section 7.12.


 


5.02.        Authorization;
No Contravention. The execution, delivery and performance by each Loan
Party of each Loan Document to which such Person is or is to be a party have
been duly authorized by all necessary corporate or other organizational action,
and do not and will not (a) contravene the terms of any of such Person’s
Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien (except Liens created under the
Loan Documents) under, or require any payment to be made under (i) any material
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. Each
Loan Party and each Subsidiary thereof is in compliance with all Contractual
Obligations referred to in clause (b)(i), except to the extent that
failure to do so 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 (a) the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document or for the
consummation of the Transaction, (b) the grant by any Loan Party of the Liens
granted by it pursuant to the Collateral Documents, (c) the perfection or
maintenance of the Liens created under the Collateral Documents (including the
first priority nature thereof) or (d) the exercise by any Agent or any Lender
of its rights under the Loan Documents or the remedies in respect of the
Collateral pursuant to the Collateral Documents, except for the authorizations,
approvals, actions, notices and filings listed on Schedule 5.03, all of
which have been duly obtained, taken, given or made and are in full force and
effect, or as otherwise provided in the applicable Collateral Document.


 


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.


 


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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, and (ii) fairly present the financial
condition of Holdings 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 since the date thereof, no material indebtedness
and other liabilities, direct or contingent, of the Holdings and its
Subsidiaries, including liabilities for taxes, material commitments and
Indebtedness have been incurred as of the Closing Date other than the
Transaction. The Genpact India Financial Statements (i) were prepared in
accordance with Indian statutory accounting principles consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of Genpact India as of
the date thereof and its results of operations for the period covered thereby
in accordance with Indian statutory accounting principles consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; and since the date thereof, no material indebtedness and other
liabilities, direct or contingent, of Genpact India and its Subsidiaries,
including liabilities for taxes, material commitments and Indebtedness have
been incurred as of the Closing Date other than the Transaction.


 


(b)           The unaudited consolidated balance
sheet of Holdings and its Subsidiaries dated March 31, 2006, 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 the financial
condition of Holdings and its Subsidiaries as of the date thereof and their
results of 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. Schedule 5.05 sets forth all material indebtedness
and other liabilities, direct or contingent, of Holdings and its Subsidiaries
as of the date of such financial statements, including liabilities for taxes,
material commitments and Indebtedness.


 


(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 Holdings and its Subsidiaries
delivered pursuant to Section 4.01 or 6.01(d) were prepared in
good faith on the basis of the assumptions stated therein, which assumptions
were fair in light of the conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, Holdings’ best estimate of
its future financial performance. The forecasted balance sheet and statements
of income and cash flows of Genpact India delivered pursuant to Section 4.01
or 6.01(d) were prepared in good faith on the basis of the assumptions
stated therein, which assumptions were fair in light of the conditions existing
at the time of delivery of such forecasts, and represented, at the time of
delivery, Genpact India’s best estimate of its future financial performance.


 


5.06.        Litigation.
There are no actions, suits, proceedings, claims or disputes pending or, to the
knowledge of Holdings or the Borrower after due and diligent investigation, 


 


64

















 


threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against Holdings or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement, any other Loan Document or the consummation
of the Transaction, or (b) either individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.


 


5.07.        Ownership
of Property; Liens; Investments. (a) 
Each Loan Party and each of its Subsidiaries 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 for
such defects in title as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.


 


(b)           Schedule 5.07(b) sets forth a
complete and accurate list of all Liens on the property or assets of each Loan
Party and each of its Subsidiaries as of the date hereof, showing the
lienholder thereof, the principal amount of the obligations secured thereby and
the property or assets of such Loan Party or such Subsidiary subject thereto. The
property of each Loan Party and each of its Subsidiaries is subject to no
Liens, other than Liens set forth on Schedule 5.07(b), and as otherwise
permitted by Section 7.01.


 


(c)           Schedule 5.07(c) sets forth a
complete and accurate list of all real property owned by each Loan Party and
each of its Eligible Subsidiaries as of the date hereof, showing the street
address, county or other relevant jurisdiction, state, record owner and book
value thereof. Each Loan Party and each of its Subsidiaries has good,
marketable and insurable fee simple title to the real property owned by such
Loan Party or such Subsidiary, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.


 


(d)           Schedule 5.07(d) sets forth a
complete and accurate list of all leases of real property under which any Loan
Party or any Eligible Subsidiary of a Loan Party is the lessee as of the date
hereof, showing the street address, county or other relevant jurisdiction,
state, lessor, lessee, expiration date and annual rental cost thereof. Each
such lease is the legal, valid and binding obligation of the lessor thereof,
enforceable in accordance with its terms.


 


(e)           Schedule 5.07(e) sets forth a
complete and accurate list of all Investments held by any Loan Party or any
Eligible Subsidiary of a Loan Party on the date hereof, showing as of the date
hereof the amount, obligor or issuer and maturity, if any, thereof.


 


5.08.        Environmental
Compliance. The Loan Parties and their respective Subsidiaries conduct in
the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof each of Holdings and the
Borrower 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.


 


5.09.        Insurance.
The properties of Holdings and its Subsidiaries are insured with financially
sound and reputable insurance companies, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar 


 


65

















 


businesses and owning similar properties in localities
where the Borrower or the applicable Subsidiary operates.


 


5.10.        Taxes.
Holdings, the Borrower and their Subsidiaries have filed all material tax
returns and reports required to be filed, and have paid all 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. To
the best knowledge of Borrower, Holdings and their Subsidiaries, there is no
proposed tax assessment against Holdings, the Borrower or any Subsidiary that
would, if made, have a Material Adverse Effect. Neither any Loan Party nor any
of its Subsidiaries is party to any tax sharing agreement other than the Tax
Matters Agreement. No income, stamp or other taxes or levies, imposts,
deductions, charges, compulsory loans or withholdings whatsoever other than
under certain circumstances a fixed or variable registration (.24% of the value
of the Loan) duty are or will be, under applicable law in Luxembourg, imposed,
assessed, levied or collected by Luxembourg or any political subdivision or
taxing authority thereof or therein either (i) on or by virtue of the execution
or delivery of the Loan Documents or (ii) on any payment to be made by the
Borrower pursuant to the Loan Documents.


 


5.11.        ERISA
Compliance. (a)  Each Plan is in
compliance in all material respects with the applicable provisions of ERISA,
the Code and other Federal or state Laws. Each Plan that is intended to qualify
under Section 401(a) of the Code has received a favorable determination letter
from the IRS or an application for such a letter is currently being processed
by the IRS with respect thereto and, to the best knowledge of Holdings and the
Borrower, nothing has occurred which would prevent, or result in the loss of,
such qualification. Holdings 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 best
knowledge of Holdings and the Borrower, 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 applicable 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 that could reasonably be expected to result in a
material liability to any Loan Party or any of its Affiliates; (ii) no Pension
Plan has any Unfunded Pension Liability; (iii) neither Holdings, nor the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any material 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 Holdings, nor the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any material liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a
Multiemployer Plan; and (v) neither Holdings, nor the Borrower nor any ERISA
Affiliate has engaged in a transaction that could be subject to Sections 4069
or 4212(c) of ERISA.


 


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(d)           With respect to each scheme or
arrangement with respect to employee benefits mandated by a government other
than the United States (a “Foreign Benefit Arrangement”) and with
respect to each employee benefit plan maintained or contributed to by any Loan
Party or any Subsidiary of any Loan Party that is not subject to United States
law (a “Foreign Plan”):


 


(i)            any material
employer and employee contributions required by law or by the terms of any
Foreign Benefit Arrangement or any Foreign Plan have been made, or, if
applicable, accrued, in accordance with normal accounting practices;


 


(ii)           except as could not
reasonably be expected to have a Material Adverse Effect, the fair market value
of the assets of each funded Foreign Plan, the liability of each insurer for
any Foreign Plan funded through insurance or the book reserve established for
any Foreign Plan, together with any accrued contributions, is sufficient to
procure or provide for the accrued benefit obligations, as of the date hereof,
with respect to all current and former participants in such Foreign Plan
according to the actuarial assumptions and valuations most recently used to
account for such obligations in accordance with applicable generally accepted
accounting principles; and


 


(iii)          each Foreign Plan
required to be registered has been registered and has been maintained in good
standing with applicable regulatory authorities.


 


5.12.        Subsidiaries;
Equity Interests; Loan Parties. As of the Closing Date, each Loan Party has
no Subsidiaries other than those specifically disclosed in Part (a) of Schedule
5.12, and all of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and non assessable and are owned by a Loan
Party in the amounts specified on Part (a) of Schedule 5.12 free and
clear of all Liens except those created under the Collateral Documents. Each
Loan Party has no equity investments in any other corporation or entity other
than those specifically disclosed in Part (b) of Schedule 5.12 as of the
Closing Date and thereafter, as also expressly permitted under Section 7.03.
All of the outstanding Equity Interests in Holdings have been validly issued,
are fully paid and non-assessable and are owned directly or indirectly by the
Equity Investors, GECIM, or directors, employees or consultants of a Loan Party
free and clear of all Liens. All of the outstanding Equity Interests in the
Borrower have been validly issued, are fully paid and non-assessable and are
owned by Holdings free and clear of all Liens except those created under the
Collateral Documents.


 


5.13.        Margin
Regulations; Investment Company Act. (a) 
The Borrower is not engaged and will not 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.


 


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


 


5.14.        Disclosure.
No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of any Loan Party to the
Administrative 


 


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Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document taken as a whole (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, in the light of the circumstances under which
they were made, not misleading; provided that, with respect to projected
financial information, each of Holdings and the Borrower represents only that
such information was prepared in good faith based upon assumptions that were
reasonable at the time.


 


5.15.        Compliance
with Laws. Each Loan Party and each of its Subsidiaries 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.


 


5.16.        Intellectual
Property; Licenses, Etc. Each Loan Party and each of its Subsidiaries own,
possess the right to use, or is being provided with transitional rights or
services with respect to, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses, and Schedule
5.16 sets forth a complete and accurate list of all such IP Rights that are
registered and owned by each Loan Party and each of its Subsidiaries. To the
knowledge of Holdings and the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by any Loan Party or any of its Subsidiaries
infringes upon any registered or issued IP Rights held by any other Person
except as could not, either individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. No claim or litigation regarding
any of the foregoing is pending or, to the knowledge of Holdings and the
Borrower, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.


 


5.17.        Solvency.
Each Loan Party is, individually and together with its Subsidiaries, Solvent.


 


5.18.        Casualty,
Etc. Neither the businesses nor the properties of any Loan Party or any of
its Subsidiaries are affected by any fire, explosion, accident, strike, lockout
or other labor dispute, drought, storm, hail, earthquake, embargo, act of God
or of the public enemy or other casualty (whether or not covered by insurance)
that, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.


 


5.19.        Pari Passu Obligations. The
Obligations of the Loan Parties under the Loan Documents rank at least pari passu with all other present and future senior
Indebtedness of the Loan Parties, other than any obligations that are
mandatorily preferred by Law and not by contract.


 


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5.20.        Genpact
India Net Worth. As of the Closing Date, after giving pro forma
effect to the Transactions, the sum of all of Genpact India’s tangible assets
exceed its liabilities.


 


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, or any Letter of
Credit shall remain outstanding, each of Holdings and the Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01
(except as otherwise set forth therein), 6.02 (except as otherwise set
forth therein), 6.03 and 6.11) cause each Subsidiary to:


 


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


 


(a)           as soon as available, but in any
event within 120 days after the applicable fiscal year-end of Holdings, (i) a
consolidated balance sheet of Holdings and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year and (ii) a
balance sheet of the Borrower on a stand-alone basis at the end of such fiscal
year and the related statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, (A) in each case, setting forth in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP and (B) all such consolidated
financial statements referred to in clause (i) above to be audited and
accompanied by a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing reasonably acceptable to the Administrative
Agent, which report and opinion shall be prepared in accordance with generally
accepted auditing standards;


 


(b)           as soon as applicable, but in any
event within 120 days after the end of the applicable fiscal year-end of
Genpact India, a consolidated balance sheet of Genpact India and its
Subsidiaries as at the end of such fiscal year, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, (A) in each case, setting forth in comparative form the
figures for the previous fiscal year, all in reasonable detail and prepared in
accordance with Indian statutory accounting principles, and (B) all such
consolidated financial statements to be audited and accompanied by a report and
opinion of a Registered Public Accounting Firm of nationally recognized
standing reasonably acceptable to the Administrative Agent, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards;


 


(c)           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 Holdings, a consolidated balance sheet of Holdings and
its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal quarter and for the portion of Holdings’ fiscal year then
ended, setting forth in comparative form the figures for the corresponding
portion of the previous fiscal year, all in reasonable detail, certified by the
chief financial officer, controller or treasurer of Holdings, as fairly
presenting the financial 


 


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condition, results of operations,
shareholders’ equity and cash flows in accordance with GAAP, subject only to
normal year end audit adjustments and the absence of footnotes;


 


(d)           unless the Consolidated Leverage
Ratio is less than 1.00:1.00, (x) as soon as available, but in any event at
least 45 days after the end of each calendar year of Holdings, forecasts
prepared by management of Holdings, in form satisfactory to the Administrative
Agent and the Required Lenders, of consolidated balance sheets and statements
of income or operations and cash flows statements of Holdings and its
Subsidiaries for the fiscal year following such calendar year and (y) as soon
as available, but in any event at least 45 days after the end of each calendar
year for the operations of Holdings and its Subsidiaries in India, forecasts
prepared by management of Genpact India, in form satisfactory to the
Administrative Agent and the Required Lenders, of balance sheets and statements
of income or operations and cash flows statements for the operations of
Holdings and its Subsidiaries in India for the fiscal year following such
calendar year.


 


As to any information contained in materials furnished
pursuant to Section 6.02(d), the Borrower shall not be separately
required to furnish such information under Sections 6.01(a), (b)
or (c) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described
in Sections 6.01(a), (b) and (c) above at the times
specified therein.


 


6.02.        Certificates;
Other Information. Deliver to the Administrative Agent and each Lender:


 


(a)           concurrently with the delivery of the
financial statements referred to in Section 6.01(a), a certificate of
its independent certified public accountants and concurrently with the delivery
of the financial statements referred to in Section 6.01(b), a
certificate of the independent certified public accountants of Genpact India
certifying such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Default or, if any such
Default shall exist, stating the nature and status of such event;


 


(b)           concurrently with the delivery of the
financial statements referred to in Sections 6.01(a), (b) and (c)
a duly completed Compliance Certificate signed by a Responsible Officer of
Holdings;


 


(c)           promptly, if reasonably requested by
the Administrative Agent, copies of any detailed final audit reports,
management letters or recommendations submitted to the board of directors (or
the audit committee of the board of directors) of any Loan Party by independent
accountants in connection with the accounts or books of any Loan Party or any
of its Subsidiaries, or any audit of any of them;


 


(d)           promptly after the same are available,
copies of each annual report, proxy or financial statement sent to the
stockholders of Luxco 1, Holdings or the Borrower, and copies of all annual,
regular, periodic and special reports and registration statements which Luxco
1, Holdings or the Borrower may file or be required to file with the SEC under
Section 13 or 15(d) of the Securities Exchange Act of 1934, or with any
national securities exchange, and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto;


 


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(e)           promptly after the furnishing
thereof, copies of any material statement or report (or as otherwise requested
by the Administrative Agent) furnished to any holder of debt securities of any
Loan Party or of any of its Subsidiaries pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be
furnished to the Lenders pursuant to any other clause of this Section 6.02;


 


(f)            as soon as available and in any
event within 90 days after the end of each fiscal year, a report summarizing
the insurance coverage (specifying type, amount and carrier) in effect for
Holdings and the Borrower and containing such additional information as the
Administrative Agent, or any Lender through the Administrative Agent, may
reasonably specify; provided, that if less than 75% of the insurance
coverage for Holdings and its Subsidiaries is held by Holdings and the
Borrower, than such report shall summarize the insurance coverage in effect for
each Loan Party and its Subsidiaries;


 


(g)           promptly and in any event within five
Business Days after receipt thereof by any of Luxco 1, any Loan Party or any
Subsidiary of a Loan Party, 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 of its Subsidiaries;


 


(h)           promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party or any
of its Subsidiaries under or pursuant to any instrument, indenture, loan or
credit or similar agreement regarding or relating to any breach or default by
any party thereto or any other event that could materially impair the value of
the interests or the rights of any Loan Party or otherwise have a Material
Adverse Effect and copies of any amendment, modification or waiver of any
provision of any instrument, indenture, loan or credit or similar agreement
and, from time to time upon request by the Administrative Agent, such
information and reports regarding such instruments, indentures and loan and
credit and similar agreements as the Administrative Agent may reasonably
request;


 


(i)            promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could reasonably be expected to
have a Material Adverse Effect;


 


(j)            as soon as available and in any
event within 90 days after the end of each fiscal year, a report identifying
(i) all material real property (whether owned or leased) Disposed of by any Loan
Party or any of its Subsidiaries during such fiscal year (including the
location and use of property), and (ii) all Subsidiaries created, acquired or
disposed of by Holdings, the Borrower or any of their Subsidiaries during such
fiscal year;


 


(k)           as soon as available and in any event
within 30 days after the end of each fiscal quarter, a report (a “Subsidiary
Report”) identifying all Subsidiaries formed or acquired in such fiscal
quarter and all other Subsidiaries, which prior to such fiscal quarter were not
Guarantors, but, in each case, as of the end of such fiscal quarter are subject
to the requirements 


 


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of Section 6.12(a)(i) or (iii),
as applicable, including a description of the real and personal properties of
such Subsidiary, in detail reasonably satisfactory to the Administrative Agent;
and


 


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


 


Documents
required to be delivered pursuant to Section 6.01(a), (b) or (c)
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 Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address listed on Schedule
11.02; or (ii) on which such documents are posted on the Borrower’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:  (i) the Borrower shall deliver paper copies
of such documents to the Administrative Agent or any Lender that requests the
Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and
(ii) the Borrower shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. Notwithstanding anything contained herein, in
every instance the Borrower 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 Borrower 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
of Holdings and the 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 the Borrower hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials
on IntraLinks or another similar electronic system (the “Platform”) and
(b) after any securities or other interests of Holdings or any of its
Subsidiaries are registered, or Holdings or any of its Subsidiaries are
required to file any information, with the SEC or any similar Governmental
Authority, 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 the Borrower or its securities) (each, a “Public Lender”). The
Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that may be distributed to the
Public Lenders and that (w) all such Borrower Materials 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 Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat
such Borrower Materials as either publicly available information or not
material information (although it may be sensitive and proprietary) with
respect to the Borrower or its securities for purposes of United 


 


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States Federal and state securities laws; (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.”


 


6.03.        Notices.
Promptly notify the Administrative Agent and each Lender:


 


(a)           of the occurrence of any Default;


 


(b)           of any matter that has resulted or
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 any Loan Party or any Subsidiary thereof; (ii) breach or
non-performance of, or any default under, the MSA by GE; (iii) any dispute,
litigation, investigation, proceeding or suspension between any Loan Party or
any Subsidiary thereof and any Governmental Authority; or (iv) the commencement
of, or any material development in, any litigation or proceeding affecting any
Loan Party or any Subsidiary thereof, including pursuant to any applicable
Environmental Laws;


 


(c)           of the occurrence of any ERISA Event;


 


(d)           of any material change in accounting
policies or financial reporting practices by any Loan Party or any Subsidiary
thereof; and


 


(e)           of the (A) occurrence of any
Disposition of property or assets for which the Borrower is required to make a
mandatory prepayment pursuant to Section 2.05(b)(i), (B) incurrence or
issuance of any Indebtedness for which the Borrower is required to make a
mandatory prepayment pursuant to Section 2.05(b)(ii) and (C) receipt of
any proceeds of casualty insurance, condemnation awards, indemnity payments or
similar proceeds for which the Borrower is required to make a mandatory
prepayment pursuant to Section 2.05(b)(iii).


 


Each
notice pursuant to Section 6.03(a), (b), (c), or (d)
shall be accompanied by a statement of a Responsible Officer of Holdings or the
Borrower setting forth details of the occurrence referred to therein and
stating what action Holdings or the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall
describe with 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 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 Holdings or such Subsidiary; (b) all lawful claims
which, if unpaid, would by law become a Lien upon its property unless, if such
Lien would otherwise be permitted under Section 7.01, such claims are
being contested in good faith by appropriate proceedings diligently conducted
and adequate reserves in accordance with GAAP are being maintained by Holdings
or such Subsidiary; and (c) all Indebtedness, as and 


 


73

















 


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; (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; and (c) use the standard of care typical in the industry in the
operation and maintenance of its facilities.


 


6.07.        Maintenance
of Insurance. Maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts 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. (a) Maintain proper books of record and account, in which
full, true and correct entries in conformity with GAAP (and, in the case of any
Subsidiary not organized in the United States, with local statutory accounting
rules and generally accepted accounting principles) consistently applied shall
be made of all financial transactions and matters involving the assets and
business of Holdings or such Subsidiary, as the case may be; and (b) maintain
such books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
Holdings 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 independent public accountants, all at such reasonable
times during normal business hours and as often as may be reasonably desired,
upon reasonable advance notice to the Borrower; provided, however,
that when an Event 


 


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of Default exists 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 Borrower at any time during
normal business hours and without advance notice.


 


6.11.        Use
of Proceeds. Use the proceeds of all Credit Extensions for working capital,
acquisitions and other general corporate purposes not in contravention of any
Law or of any Loan Document.


 


6.12.        Covenant
to Guarantee Obligations and Give Security. (a) Holdings or the Borrower,
as applicable, shall, at the Borrower’s expense, unless, in any case, (x) such
action would give rise to material adverse tax consequences for a Loan Party,
(y) such action would be unlawful in the jurisdiction in which such action is
to be taken, or (z) the Administrative Agent determines in its reasonable discretion
that the cost thereof is prohibitive relative to the benefits to the Lenders
that would be afforded thereby in light of the operations and condition
(financial and otherwise) of Holdings, the Borrower and their respective
Subsidiaries:


 


(i)            within 120 days
after the end of each fiscal quarter, cause each Subsidiary formed or acquired
in such fiscal quarter and each other Subsidiary, which prior to such fiscal
quarter was not a Guarantor and which, in each case, is identified in the
respective Subsidiary Report for such fiscal quarter, to duly execute and
deliver to the Administrative Agent or Collateral Agent, as applicable, a
guaranty or guaranty supplement, in form and substance reasonably satisfactory
to the Administrative Agent; provided, that this Section 6.12(a)(i)
shall not apply to any Subsidiary unless the EBITDA for such Subsidiary for the
twelve-month period ending in the fiscal quarter covered by the relevant
Subsidiary Report shall be equal to or greater than 20% of the Consolidated EBITDA
for such period after giving pro forma effect to any acquisitions made during
such period; provided  further, that any Subsidiary that would be
required to comply with the requirements of this Section 6.12(a)(i)
which is unable by law to comply shall not be in breach of this Section
6.12(a)(i) unless such compliance is so permitted,


 


(ii)           within 120 days of
any Subsidiary extending credit in excess of $2,000,000 to any Subsidiary,
cause such Subsidiary to duly execute and deliver, to the Collateral Agent such
documents necessary to grant to the Secured Parties a valid and perfected Lien
on such intercompany debt, including the Security Agreement Supplements and
other security and pledge agreements, as specified by and in form and substance
reasonably satisfactory to the Administrative Agent,


 


(iii)          within 120 days
after the end of each fiscal quarter, a Subsidiary as being subject to this
Section 6.12(a)(iii), cause each Subsidiary formed or acquired in such
fiscal quarter and each other Subsidiary, which prior to such fiscal quarter
was not a Guarantor and which, in each case, is identified in the respective
Subsidiary Report for such fiscal quarter to duly execute and deliver, to the
Collateral Agent such documents necessary to grant to the Secured Parties a
valid and perfected Lien on all of its capital stock, including Security
Agreement Supplements, and other security and pledge agreements, as specified
by and in form and substance reasonably satisfactory to the Administrative
Agent (including delivery of all Pledged Equity in and of such Subsidiary), and
other instruments securing payment of all the Obligations such parent, 


 


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under the Loan
Documents; provided, that this Section 6.12(a)(iii) shall not
apply to any Subsidiary unless the revenues for such Subsidiary for the
twelve-month period ending in the fiscal quarter covered by the relevant
Subsidiary Report shall be equal to or greater than $10,000,000 (such
Subsidiary to be deemed an “Eligible Subsidiary”); provided,
further that at any time the aggregate revenues of all Subsidiaries which are
not Eligible Subsidiaries exceed 7.5% of the consolidated revenues of Holdings
and its Subsidiaries after giving pro forma effect to any acquisitions made during
such period, all Subsidiaries thereafter formed or acquired and all
Subsidiaries not then subject to this Section 6.12(a)(iii) shall be
subject to the provisions of this Section 6.12(a)(iii) so long as the
aggregate revenues of all Subsidiaries who are not Eligible Subsidiaries exceed
7.5% of the consolidated revenues of Holdings and its Subsidiaries, and


 


(iv)          deliver to the
Administrative Agent, upon the request of the Administrative Agent in its sole
discretion within 45 days of such request, a signed copy of a favorable
opinion, addressed to the Administrative Agent, the Collateral Agent and the
other Secured Parties, of counsel for the Loan Parties reasonably acceptable to
the Administrative Agent as to the matters contained in clauses (i), (ii),
and (iii) above, and as to such other matters as the Administrative
Agent may reasonably request.


 


All calculations to be made pursuant to this Section
6.12(a) shall 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), (b) or (c) (and to the extent such financial
statements for the Person and/or assets so acquired are not available, such
compliance shall be determined on the basis of financial information and support
therefor reasonably acceptable to the Administrative Agent in its reasonable
judgment).


 


(b)           Upon the request of the
Administrative Agent following the occurrence and during the continuance of an
Event of Default, Holdings or the Borrower, as applicable, shall, at the
Borrower’s expense unless such action (x) would be unlawful in the jurisdiction
in which such action is to be taken or (y) relates to assets requiring
governmental or regulatory approval pursuant to the laws of India:


 


(i)            within 10 days
after such request, furnish to the Administrative Agent a description of the
real and personal properties of the Loan Parties and their respective
Subsidiaries in detail satisfactory to the Administrative Agent,


 


(ii)           within 15 days
after such request, duly execute and deliver, and cause each Loan Party (if it
has not already done so) to duly execute and deliver, to the Administrative
Agent or Collateral Agent deeds of trust, trust deeds, mortgages, leasehold
mortgages, leasehold deeds of trust, Security Agreement Supplements, IP
Security Agreement Supplements and other security and pledge agreements, as
specified by and in form and substance satisfactory to the Administrative Agent
(including delivery of all Pledged Equity in and of such Subsidiary, and other
instruments), securing payment of all the Obligations of the applicable Loan
Party under the Loan Documents and constituting Liens on all such properties,


 


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(iii)          within 30 days
after such request, take, and cause each Loan Party to take, whatever action
(including the recording of mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of notices on
title documents) may be necessary or advisable in the opinion of the
Administrative Agent to vest in the Administrative Agent or Collateral Agent
(or in any representative of the Administrative Agent or Collateral Agent
designated by it) valid and subsisting Liens on the properties purported to be subject
to the deeds of trust, trust deeds, mortgages, leasehold mortgages, leasehold
deeds of trust, Security Agreement Supplements, IP Security Agreement
Supplements and security and pledge agreements delivered pursuant to this Section
6.12, enforceable against all third parties in accordance with their terms,
and


 


(iv)          within 60 days after
such request, deliver to the Administrative Agent, upon the request of the
Administrative Agent or Collateral Agent in its sole discretion, a signed copy
of a favorable opinion, addressed to the Administrative Agent and the other
Secured Parties, of counsel for the Loan Parties acceptable to the
Administrative Agent or Collateral Agent as to the matters contained in clauses
(ii) and (iii) above, and as to such other matters as the
Administrative Agent may reasonably request, and


 


(c)           At any time upon request of the
Administrative Agent or the Collateral Agent, promptly execute and deliver any
and all further instruments and documents and take all such other action as the
Administrative Agent may deem necessary or desirable in obtaining the full
benefits of, or in perfecting and preserving the Liens of, such guaranties,
deeds of trust, trust deeds, Security Agreement Supplements, and other security
and pledge agreements.


 


Notwithstanding anything to the contrary
contained in any of the Collateral Documents, no Loan Party shall be required
to take any action to perfect the security interest in the Collateral granted
by it in addition to those actions required in this Section 6.12 and Section
6.15 (other than with respect to the Collateral existing on the date
hereof, which has been granted by a Subsidiary that would be deemed an Eligible
Subsidiary pursuant to Section 6.12(a)(iii)). For the avoidance of
doubt, Schedule 5.12 sets forth all Subsidiaries that as of the date
hereof are exempt from the requirement of Section 6.12(a)(i) and (iii).


 


6.13.        Compliance
with Environmental Laws. Except as could not reasonably be expected to have
a Material Adverse Effect, (a) comply, and cause all lessees and other Persons
operating or occupying its properties to comply, in all material respects, with
all applicable Environmental Laws and Environmental Permits, (b) obtain and
renew all Environmental Permits necessary for its operations and properties,
and (c) conduct any investigation, study, sampling and testing, and undertake
any cleanup, removal, remedial or other action necessary to remove and clean up
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that
neither Holdings nor any of its Subsidiaries shall be required to undertake any
such cleanup, removal, remedial or other action to the extent that its
obligation to do so is being contested in good faith and by proper proceedings
and appropriate reserves are being maintained with respect to such
circumstances.


 


6.14.        Further
Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or
error that may 


 


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be discovered in any Loan Document or in the
execution, acknowledgment, filing or recordation thereof, and (b) do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and
other instruments as the Administrative Agent, the Collateral Agent, or any
Lender through the Administrative Agent or Collateral Agent, may reasonably
require from time to time in order to (i) carry out more effectively the
purposes of the Loan Documents, (ii) to the fullest extent permitted by
applicable law, subject any Loan Party’s or any of its Subsidiaries’
properties, assets, rights or interests to the Liens now or hereafter intended
to be covered by any of the Collateral Documents, (iii) perfect and maintain
the validity, effectiveness and priority of any of the Collateral Documents and
any of the Liens intended to be created thereunder; provided, that the Borrower
shall not be required to take any such actions under the Pledge Agreements
relating to the shares of any Subsidiary which is not deemed an Eligible
Subsidiary pursuant to Section 6.12(a)(iii) and (iv) assure, convey,
grant, assign, transfer, preserve, protect and confirm more effectively unto
the Secured Parties the rights granted or now or hereafter intended to be
granted to the Secured Parties under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan
Party or any of its Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.


 


6.15.        Cash
Collateral Accounts. (a) Maintain at all times one or more MSA Collateral
Accounts and the MSA Account Control Agreements with respect to each such MSA
Collateral Account in effect and cause all payments in respect of the MSA or
otherwise by GE or any of its Affiliates in connection with any matter relating
thereto to be made directly to MSA Collateral Accounts, pursuant to the MSA Assignment
Consent, (b) maintain all bank accounts of Holdings and the Borrower with the
Administrative Agent, the Collateral Agent or any Affiliate thereof, and
(c) maintain all other bank accounts with the Administrative Agent, the
Collateral Agent or any Affiliate thereof or as a Cash Collateral Account,
unless (i) such action would be unlawful in the jurisdiction in which such
action is to be taken, (ii) such action would give rise to material adverse tax
consequences for a Loan Party, or (iii) the Administrative Agent determines in
its reasonable discretion that the cost thereof is prohibitive relative to the
benefits to the Lenders that would be afforded thereby in light of the
operations and condition (financial and otherwise) of Holdings, the Borrower
and their respective Subsidiaries; provided, that clauses (b) and
(c) shall not apply with respect to such bank accounts to the extent
that (and only for so long as) the amounts deposited or held in, or credited
to, such accounts are individually less than $5,000,000.


 


6.16.        Post-Closing
Requirements. (a)  On or prior to the
date that is 60 days after the Closing Date, the Administrative Agent shall
have received the documents specified on Schedule 6.16, each of which
shall be originals or telecopies (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, if applicable, and each in form and substance satisfactory
to the Administrative Agent; provided, that, in the event that Holdings,
the Borrower, Genpact India Investments and Genpact India Holdings have
complied with a commercially reasonable efforts undertaking to deliver the
documents with respect to new shares pledges under the India Pledge Agreement
as set forth on Schedule 6.16 and the Indian statutory and regulatory
approvals contemplated therein have not been acquired, (i) failure to deliver
such documents shall not constitute a Default or Event of Default and (ii) the
Borrower will use commercially reasonable efforts to provide to the Lenders an
opinion of counsel in the Republic of India satisfactory to it stating that
such approvals and 


 


78

















 


consent cannot be obtained and that the existing share
pledges created by the India Pledge Agreement continue to be valid and
enforceable.


 


(b)           The Borrower shall have paid all
fees, charges and disbursements of all counsel to the Administrative Agent to
the extent invoiced prior to or on the date any of the foregoing are required
to be complied with whether or not actually complied with, 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 completion of such proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts
between the Borrower and the Administrative Agent).


 


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, or any Letter of
Credit shall remain outstanding, neither Holdings nor the Borrower shall, or
shall 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, or sign or file
under the Uniform Commercial Code of any jurisdiction a financing statement
that names Holdings or any of its Subsidiaries as debtor, or sign any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign any accounts or other right to receive income, other than
the following:


 


(a)           Liens pursuant to any Loan Document;


 


(b)           Liens existing on the date hereof and
listed on Schedule 5.07(b) 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, (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
7.02(d);


 


(c)           Liens for taxes not yet due or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;


 


(d)           carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business which are not overdue for a period of more than 30 days or which
are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books
of the applicable Person;


 


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(e)           pledges or deposits in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other social security legislation, other than any Lien imposed by
ERISA;


 


(f)            deposits to secure the performance
of bids, trade contracts and leases (other than Indebtedness), statutory
obligations, surety bonds (other than bonds related to judgments or
litigation), performance bonds and other obligations of a like nature incurred
in the ordinary course of business;


 


(g)           easements, rights of way,
restrictions and other similar encumbrances affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the applicable Person;


 


(h)           Liens securing judgments for the
payment of money not constituting an Event of Default under Section 8.01(h)
or securing appeal or other surety bonds related to such judgments;


 


(i)            Liens securing Indebtedness
permitted under Section 7.02(f); provided that (i) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness or, if applicable, subject to such Capitalized Lease and (ii) the
Indebtedness secured thereby does not exceed the cost or fair market value,
whichever is lower, of the property being acquired on the date of acquisition;


 


(j)            Liens existing on property at the
time of its acquisition or existing on the property of any Person that becomes
a Subsidiary after the date hereof (other than Liens on the Equity Interests of
any Person that becomes a Subsidiary) in connection with an acquisition, merger
or consolidation permitted under Section 7.03(h); provided, that
(i) such Lien was not created in contemplation of such acquisition, merger or
consolidation or such Person becoming a Subsidiary, (ii) such Lien does not
extend to or cover any other assets or property other than those originally of
the Person so acquired, merged or consolidated, and (iii) the Indebtedness
secured thereby is permitted under Section 7.02(g);


 


(k)           Liens on assets Disposed of pursuant
to Section 7.05(f) securing Indebtedness permitted under Section
7.02(h).


 


(l)            Liens on cash deposits securing
Indebtedness permitted under Section 7.02(j)(ii); and


 


(m)          other Liens affecting property with an
aggregate fair value not to exceed $5,000,000, provided that no such
Lien shall extend to or cover any Collateral, any Equity Interest in Holdings
and its Subsidiaries or any asset of Holdings and its Subsidiaries.


 


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


 


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(a)           Indebtedness in respect of Swap
Contracts designed to hedge against fluctuations in interest rates or foreign
exchange rates incurred in the ordinary course of business and consistent with
prudent business practice and not for speculative purposes,


 


(b)           Indebtedness owed to a Loan Party or
any Subsidiary; provided that such Indebtedness in excess of $2,000,000
shall (i) constitute “Pledged Debt” under the relevant Collateral Document,
unless (x) such action would be unlawful in the jurisdiction in which such
action is to be taken, (y) such action would give rise to material adverse tax
consequences for a Loan Party, or (z) the Administrative Agent determines in
its reasonable discretion that the cost thereof is prohibitive relative to the
benefits to the Lenders that would be afforded thereby in light of the
operations and condition (financial and otherwise) of Holdings, the Borrower
and their respective Subsidiaries, (ii) be on terms (including
subordination terms) acceptable to the Administrative Agent and (iii) be
otherwise permitted under the provisions of Section 7.03;


 


(c)           Indebtedness under the Loan
Documents;


 


(d)           Indebtedness outstanding on the date
hereof and listed on Schedule 7.02 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 and the direct or any contingent obligor with
respect thereto is not changed, as a result of or in connection with such
refinancing, refunding, renewal or extension; provided  still  further
that the terms relating to principal amount, amortization, maturity, collateral
(if any) and subordination (if any), and other material terms taken as a whole,
of any such refinancing, refunding, renewing or extending Indebtedness, and of
any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Loan Parties or
the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended refinanced and the
interest rate applicable to any such refinancing, refunding, renewing or
extending Indebtedness does not exceed the then applicable market interest
rate;


 


(e)           Guarantees by Holdings or any
Subsidiary in respect of Indebtedness otherwise permitted hereunder of Holdings
or any Subsidiary;


 


(f)            Indebtedness in respect of
Capitalized Leases, Synthetic Lease Obligations and purchase money obligations
for fixed or capital assets within the limitations set forth in Section
7.01(i); provided, however, that the aggregate amount of all
such Indebtedness at any one time outstanding shall not exceed $15,000,000;


 


(g)           Indebtedness in respect of
Capitalized Leases, Synthetic Lease Obligations and purchase money obligations
for fixed or capital assets assumed in connection with in connection with an
acquisition, merger or consolidation permitted under Section 7.03(h); provided,
that (i) such Indebtedness was not created or incurred in contemplation of or
in connection with such acquisition, merger or consolidation, (ii) before and
after giving effect to the assumption of such Indebtedness, no Default or Event
of Default shall have occurred and be continuing or would result therefrom,
(iii) after giving pro forma effect to such acquisition, 


 


81





















 


merger or consolidation, including the
assumption of such Indebtedness, the Borrower would be in pro forma compliance
with each of the covenants set forth in Section 7.11 and (iv) the
aggregate principal amount of such Indebtedness outstanding at any time shall
not exceed $10,000,000;


 


(h)           Indebtedness in respect of
Capitalized Leases incurred in connection with any Disposition permitted
pursuant to Section 7.05(f) so long as the aggregate net present value
of all obligations under such Capitalized Leases (excluding any amount
attributable to interest or maintenance expense) does not exceed the amount of
the Net Cash Proceeds realized from such Disposition;


 


(i)            unsecured Indebtedness of the
Borrower or Holdings (including capitalized interest in respect thereof) of the
Borrower in an aggregate amount not to exceed $25,000,000 at any time
outstanding incurred to finance any acquisition permitted under Section 7.03(h)
so long as (i) no Default or Event of Default shall have occurred and be
continuing prior thereto or would result therefrom or from such acquisition,
(ii) such Indebtedness shall be subordinated to the Obligations on terms and
conditions reasonably satisfactory to the Administrative Agent, (iii) such
Indebtedness shall have no scheduled amortization or mandatory prepayment,
redemption or similar obligations prior to the date that is one year after the
final Maturity Date of the Facilities, (iv) the covenants and default
provisions applicable to such Indebtedness shall be no more restrictive than
those contained in publicly traded holding company high yield securities and,
in any event, no more restrictive than those contained in Loan Documents, and (v)
after giving pro forma effect to the
incurrence of such Indebtedness and such acquisition, the pro forma
Consolidated Leverage Ratio shall not be greater than the  Consolidated Leverage Ratio immediately prior
to giving effect thereto, in each case, as certified and calculated in
reasonable detail by the Chief Financial Officer of Holdings and the Borrower; provided,
that clause (v) shall not apply if, after giving pro forma
effect to the incurrence of such Indebtedness and such acquisition, the pro forma Consolidated Leverage Ratio would be 1.00:1.00 or
less;


 


(j)            Indebtedness of any Subsidiary of
Holdings or the Borrower in respect of any overdraft, working capital or
similar credit facility established by such Subsidiary in the jurisdiction in
which such Subsidiary conducts its business, which shall be unsecured but may
be (i) supported by a Letter of Credit issued by the L/C Issuer pursuant to
Section 2.03 or (ii) if such facility is established with the
Administrative Agent or an Affiliate of the Administrative Agent, secured by a
cash deposit by a Subsidiary of Holdings in the jurisdiction of its
organization;


 


(k)           Indebtedness of any Subsidiary of the
Borrower or the Borrower in an aggregate principal amount not to exceed
$10,000,000 at any time outstanding; and


 


(l)            Holdings or the Borrower may incur
unsecured Indebtedness, which is subordinated in a manner reasonably
satisfactory to the Administrative Agent to Indebtedness under the Loan
Documents, including that the terms of such Indebtedness shall provide for
scheduled principal payments no earlier than three months following the
Maturity Date; provided, that immediately before and immediately after
giving pro forma effect to such incurrence, (i) no Default shall have occurred
and be continuing and (ii) immediately after giving effect to such incurrence,
Holdings and its Subsidiaries shall be in pro forma compliance with the 


 


82





















 


covenant set forth in Section 7.11(c),
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 (c) as though such Indebtedness had been incurred as of
the first day of the fiscal period covered thereby.


 


7.03.        Investments.
Make or hold any Investments, except:


 


(a)           Investments held by Holdings and its
Subsidiaries in the form of Cash Equivalents;


 


(b)           advances to officers, directors and
employees of Holdings and its Subsidiaries for travel and entertainment expenses
in the ordinary course of business and up to $15,000,000 at any time
outstanding for relocation and other analogous ordinary business purposes;


 


(c)           (i) Investments by Holdings and its
Subsidiaries in their respective Subsidiaries outstanding on the date hereof,
(ii) additional Investments by Holdings and its Subsidiaries in Loan Parties,
(iii) additional Investments by Subsidiaries of Holdings that are not Loan
Parties in other Subsidiaries that are not Loan Parties and (iv) so long as no
Default has occurred and is continuing or would result from such Investment,
additional Investments by the Loan Parties in Subsidiaries that are not Loan
Parties;


 


(d)           Investments consisting of extensions
of credit in the nature of accounts receivable or notes receivable arising from
the grant of trade credit in the ordinary course of business, and Investments
received in satisfaction or partial satisfaction thereof from financially
troubled account debtors to the extent reasonably necessary in order to prevent
or limit loss;


 


(e)           Guarantees permitted by Section
7.02;


 


(f)            Investments existing on the date
hereof and set forth on Schedule 5.07(e);


 


(g)           Investments by Holdings and the
Borrower in Swap Contracts permitted under Section 7.02(a);


 


(h)           the purchase or other acquisition of
all of the Equity Interests in, or all or substantially all of the property and
assets of, or assets constituting a business unit or all or a substantial part
of the business of, any Person that, upon the consummation thereof, will be
wholly-owned directly by Holdings 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
7.03(h):


 


(i)            any newly-created,
surviving or acquired Subsidiary shall comply with the requirements of Section
6.12 unless not required to do so pursuant to the terms of such Section
6.12;


 


(ii)           in the case of a
purchase or acquisition which the amount of the total consideration exceeds
$10,000,000, the lines of business of the Person to be (or the property and
assets of which are to be) so purchased or otherwise acquired 


 


83





















 


shall be
substantially the same lines of business as one or more of the principal
businesses of Holdings and its Subsidiaries in the ordinary course or
reasonably related thereto; provided that nothing contained in this clause
(ii) shall prohibit the acquisition of MoneyLine Lending Services, Inc., a
California corporation;


 


(iii)          such purchase or
other acquisition shall not include or result in any contingent liabilities
(other than as would otherwise be permitted under the Loan Documents, including
after the making of any representation and warranties in the Loan Documents)
that could reasonably be expected to be material to the business, financial
condition, operations or prospects of Holdings and its Subsidiaries, taken as a
whole (as determined in good faith by the board of directors (or the persons
performing similar functions) of Holdings or such Subsidiary if the board of
directors is otherwise approving such transaction and, in each other case, by a
Responsible Officer);


 


(iv)          (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, Holdings
and its Subsidiaries shall be in pro forma compliance with the covenant set
forth in Section 7.11(c), 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 to the extent such financial
statements for the Person and/or assets so acquired are not available, such
compliance shall be determined on the basis of financial information and
support therefor reasonably acceptable to the Administrative Agent in its
reasonable judgment);


 


(v)           the EBITDA for the
Person to be so purchased or acquired for the twelve-month period ending in the
month prior to such acquisition is less than twenty-five percent (25%) of the
Consolidated EBITDA of Holdings for such twelve-month period, after giving
effect to such purchase or acquisition; and


 


(vi)          Holdings or the
Borrower shall have delivered to the Administrative Agent, on behalf of the
Lenders, at least one Business Day 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 (h)
have been satisfied or will be satisfied on or prior to the consummation of
such purchase or other acquisition, including, without limitation, the
calculation of covenant compliance contemplated by clause (iv) (B) above
in reasonable detail and with appropriate back-up;


 


(i)            Investments
received in connection with any Disposition permitted under Section 7.05(j);
and


 


84














(j)            other Investments not exceeding $15,000,000 in the
aggregate in any fiscal year of Holdings.


 


7.04.        Fundamental Changes.  Merge, dissolve, liquidate, consolidate 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:


 


(a)           any Subsidiary may merge with (i) Holdings or the Borrower,
provided that Holdings or the Borrower, as the case may be, shall be the
continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Loan Party is merging with another Subsidiary, such Loan Party
shall be the continuing or surviving Person;


 


(b)           any Loan Party may Dispose of all or substantially all of
its assets (upon voluntary liquidation or otherwise) to Holdings, the Borrower
or to another Loan Party;


 


(c)           any Subsidiary that is not a Loan Party may dispose of all
or substantially all its assets to (i) another Subsidiary which is not a Loan
Party or (ii) to a Loan Party for no consideration, or, in the case of this clause
(ii), pursuant to a Disposition which is in the nature of a liquidation;


 


(d)           upon at least 30 days’ prior written notice to the
Administrative Agent, Holdings and the Borrower may reorganize in a
jurisdiction different than its jurisdiction of organization on the date hereof
so long as (i) the Administrative Agent reasonably determines that such reorganization
would not be adverse in any manner to (A) the Lenders, (B) the ability of
Holdings, the Borrower and their Subsidiaries to perform and comply with their
respective obligations and limitations under the Loan Documents, and (C) any
rights, powers, benefits and remedies under the Loan Documents or the
Collateral, and (ii) such reorganization is permitted under the MSA and the
Shareholders Agreement; and


 


(e)           in connection with any acquisition permitted under Section
7.03, any Subsidiary of Holdings may merge into or consolidate with any
other Person or permit any other Person to merge into or consolidate with it; provided
that the Person surviving such merger shall be a wholly-owned Subsidiary of
Holdings;


 


provided,
however, that in each case, immediately after giving effect thereto (i)
in the case of any such merger to which Holdings or the Borrower is a party,
Holdings or the Borrower, as the case may, is the surviving corporation and
(ii) in the case of any such merger to which any Loan Party (other than
Holdings or the Borrower) is a party, such Loan Party is the surviving
corporation.


 


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


 


(a)           Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;


 


(b)           Dispositions (including non-exclusive licenses) of
inventory in the ordinary course of business;


 


85


 





















 


(c)           Dispositions of equipment or real 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;


 


(d)           Dispositions of property by any Subsidiary to Holdings or
to a wholly-owned Subsidiary; provided that if the transferor of such
property is a Loan Party, the transferee thereof must either be the Borrower or
another Loan Party;


 


(e)           Dispositions permitted by Section 7.04;


 


(f)            Dispositions by Holdings and its Subsidiaries of one or
more of the facilities listed on Schedule 7.05(f) pursuant to
sale-leaseback transactions, provided that the aggregate fair market
value of all property so Disposed of shall not exceed $25,000,000 from and
after the Closing Date;


 


(g)           Dispositions of overdue accounts receivable solely in
connection with the collection or compromise thereof;


 


(h)           Dispositions pursuant to operating leases entered into in
the ordinary course of business consistent with past practices;


 


(i)            Dispositions of property and assets subject to
condemnation and casualty events; and


 


(j)            Dispositions by the Borrower and its Subsidiaries not
otherwise permitted under this Section 7.05; provided that (i) at
the time of such Disposition, no Default shall exist or would result from such
Disposition, (ii) the aggregate book value of all property Disposed of in
reliance on this clause (j) in any fiscal year shall not exceed $5,000,000
and (iii) the purchase consideration for such asset paid to the Borrower or
such Subsidiary shall consist of not less than 75% cash with the remainder to
constitute fixed assets useful in the conduct of the business of the Holdings,
the Borrower and their Subsidiaries or Investments permitted under Section
7.03;


 


provided,
however, that any Disposition pursuant to Section 7.05(a) through
Section 7.05(g) and 7.05(j) shall be for fair market value; provided,
further that nothing contained in this Section 7.05 shall prohibit
the disposition of mortgage loans in the ordinary course of business by
MoneyLine Lending Services, Inc. or any successor entity thereof upon the
acquisition of MoneyLine Lending Services, Inc.


 


7.06.        Restricted Payments.  Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
or issue or sell any Equity Interests or accept any capital contributions,
except that:


 


(a)           each Subsidiary may make Restricted Payments or issue or
sell any Equity Interests to Holdings, the Borrower, any Subsidiaries of
Holdings or the Borrower that are Guarantors and any other Person that owns a
direct Equity Interest in such Subsidiary, ratably according to their
respective holdings of the type of Equity Interest in respect of which such 


 


86


 





















 


Restricted Payment, issuance or sale is being
made and any Subsidiaries of Holdings may accept capital contributions from
Holdings and any other Subsidiaries of Holdings;


 


(b)           Holdings 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 so long as no Change of Control shall
result therefrom;


 


(c)           Holdings and each Subsidiary may purchase, redeem or
otherwise acquire its common Equity Interests with the proceeds received from
the substantially concurrent issue of new common Equity Interests;


 


(d)           so long as no Default shall have occurred and is
continuing or would result therefrom and the Consolidated Leverage Ratio as set
forth in the most recent Compliance Certificate received by the Administrative
Agent pursuant to Section 6.02(b) is less than or equal to 2.00:1.00,
each of the Borrower and Holdings may declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire shares of its capital
stock or warrants, rights or options to acquire any such shares for cash; provided,
that if the Consolidated Leverage Ratio described above is greater than
2.00:1.00, then such purchases, redemptions or acquisitions shall not in an
aggregate amount after the Closing Date during the term of this Agreement
exceed (i) $5,000,000, plus (ii) an amount equal to (A) 50% of
Consolidated Net Income for the period (taken as one accounting period)
commencing with the fiscal quarter ending March 31, 2006 and ending on the date
of Holding’s most recently ended fiscal quarter for which financial statements
required to be delivered pursuant to Section 6.01(a) or (c) have been
delivered at the time of such Restricted Payment or, if Consolidated Net Income
for such period is negative, minus 100% of such deficit, minus
(B) the sum of all Restricted Payments previously made pursuant to this clause
(ii); provided, that no such Restricted Payments may be made under clause
(ii) above in any fiscal year if the Consolidated Net Income for the prior
fiscal year was negative (it being understood that the amount otherwise
available in clause (ii) will continue to accumulate or reduce during
such fiscal year); and


 


(e)           Issuances of Equity Interests that do not constitute
Indebtedness of Holdings and would not result in a Change of Control (i) in an
initial public offering of common equity securities of Holdings, (ii) pursuant
to management employment and benefit plans permitted under this Agreement,
(iii) to GE and the Equity Investors or (iv) in connection with an Investment
permitted under Section 7.03(h).


 


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


 


7.08.        Transactions with Affiliates.  Enter into any transaction of any kind with any
Affiliate of Holdings, whether or not in the ordinary course of business, other
than on fair and reasonable terms substantially as favorable to the Borrower or
such Subsidiary as would be obtainable by the Borrower or such Subsidiary at
the time in a comparable arm’s length transaction with a Person other than an
Affiliate.


 


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7.09.        Burdensome Agreements.  Enter into or permit to exist any Contractual
Obligation (other than this Agreement or any other Loan Document) that (a)
limits the ability (i) of any Subsidiary to make Restricted Payments to
Holdings, the Borrower or any Guarantor or to otherwise transfer property to or
invest in Holdings, the Borrower or any Guarantor, except for any agreement in
effect (A) on the date hereof or (B) at the time any Subsidiary becomes a
Subsidiary of Holdings, so long as such agreement was not entered into solely
in contemplation of such Person becoming a Subsidiary of Holdings, (ii) of any
Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of Holdings
or any Subsidiary to create, incur, assume or suffer to exist Liens on property
of such Person; provided, however, that this clause (iii)
shall not prohibit (x) any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.02(f) solely to the
extent any such negative pledge relates to the property financed by or the
subject of such Indebtedness, (y) any negative pledge in favor of the Borrower
under the Genpact Sub-Contracts, and (z) any negative pledge in a sale and
purchase agreement for assets permitted to be Disposed of under Section 7.05
pending such Disposition and such negative pledge shall cover only such assets
to be Disposed of; or (b) requires the grant of a Lien to secure an obligation
of such Person if a Lien is granted to secure another obligation of such
Person.


 


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)  Genpact
India Tangible Net Worth.  Permit the
sum of all of Genpact India’s liabilities to exceed its tangible assets.


 


(b)           Consolidated Interest Coverage Ratio.  Permit the Consolidated Interest Coverage
Ratio at any time during any Measurement Period to be less than 4.00:1.00.


 


(c)           Consolidated Leverage Ratio.  Permit the Consolidated Leverage Ratio at any
time during any Measurement Period set forth below to be greater than the ratio
set forth below opposite such period:


 




	
  Measurement Period Ending

  	
   

  	
  Maximum

  Consolidated

  Leverage Ratio

  	
   

  
	
  Closing Date
  through March 31, 2008

  	
   

  	
  2.25:1.00

  	
   

  
	
  June 30, 2008
  and each fiscal quarter thereafter

  	
   

  	
  2.00:1.00

  	
   

  






 


7.12.        Amendments of Organization Documents.  Amend any Loan Party’s Organization Documents
in any manner adverse to the interests of the Lenders or, unless the
Administrative Agent is given 30 days prior notice and is reasonably satisfied
that it has a perfected first priority security interest in such Equity
Interests, including any security evidencing such Equity Interests, amend or
permit any Loan Party to amend its limited liability company agreement or
operating agreement causing any Equity Interests in such Loan Party to 


 


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constitute a security under Section 8-103 of the UCC in the State of
New York or the corresponding code or statute of any other applicable
jurisdiction; provided, that the Borrower and Holdings shall be
permitted to reorganize under the laws of a jurisdiction other than the Grand
Duchy of Luxembourg, so long as the Borrower or Holdings, as the case may be,
provides to the Administrative Agent 30 days prior notice of the proposed
reorganization, such notice shall be accompanied by an opinion of counsel, in
form and substance reasonably satisfactory to the Administrative Agent,
confirming that the proposed reorganization shall not materially adversely
impact the Collateral or otherwise affect the interests or rights of the
Secured Parties.


 


7.13.        Accounting Changes.  Make any change in (a) accounting policies or
reporting practices, except as consistent with or required by GAAP or, in the
case of any Subsidiary, applicable law, provided, that any financial
information required to be delivered under Section 6.01(a), (b) or
(c) after such change, shall include reconciliations to such policies
and practices as applied in the preparation of the Audited Financial
Statements, or (b) fiscal year other than to a fiscal year ending December 31, provided,
that no such change shall result in a period of longer than 12 months between
delivery of audited financial statements pursuant to Section 6.01(a) and
(b).


 


7.14.        Prepayments, Etc. of Indebtedness.  (a) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or
make any payment in violation of any subordination terms of, any Indebtedness,
except (i) the prepayment of the Credit Extensions in accordance with the terms
of this Agreement, (ii) regularly scheduled or required repayments or
redemptions of Indebtedness set forth in Schedule 7.02, (iii) prepayment
of any Indebtedness permitted under Sections 7.02 (a), (b), (f), (h),
and (j) and (iv) any refinancing, refunding, renewal or extension of any
Indebtedness permitted under Section 7.02(g), (i), (k) and (l) on
the same terms and conditions as set forth in Section 7.02(d) for any
refinancing, refunding, renewal or extension thereunder and, in the case of Section
7.02(i), so long such refinancing Indebtedness (A) is otherwise incurred in
compliance with clauses (i), (ii), (iii), (iv) or (v) of
such Section 7.02(i), (B) has a maturity no earlier than the
Indebtedness being refinanced, and (C) is on terms and conditions no less
favorable to Holdings, the Borrower and its Subsidiaries than the Indebtedness
being refinanced.


 


7.15.        Amendment, Etc. of the MSA and Indebtedness.  (a) 
Cancel or terminate the MSA or consent to or accept any cancellation or
termination thereof, (b) amend, modify or change in any manner any term or
condition of the MSA or give any consent, waiver or approval thereunder, (c)
waive any default under or any breach of any term or condition of the MSA,
(d) take any other action in connection with the MSA that, in each of the
foregoing clauses (a) through (d), would impair the value of the
interest or rights of any Loan Party thereunder or that would impair the rights
or interests of any Agent or any Lender, or (e) amend, modify or change in any
manner any term or condition of any Indebtedness set forth in Schedule 7.02,
except for any refinancing, refunding, renewal or extension thereof permitted
by Sections 7.02(d) and 7.14.


 


7.16.        Partnerships, Etc.  Become a general partner in any general or
limited partnership or joint venture, except that any Subsidiary the sole
assets of which consist of its interest in a partnership or joint venture may
become a general partner in such partnership or joint venture.


 


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7.17.        Speculative Transactions.  Engage, or permit any of its Subsidiaries to
engage, in any transaction involving commodity options or futures contracts or
any similar speculative transactions, which are, in any case, inconsistent with
prior practice and not otherwise made in the ordinary course of business.


 


7.18.        Formation of Subsidiaries.  Organize or invest in any new Subsidiary
except as permitted under Section 7.03.


 


7.19.        Mauritius Holding Companies.  Notwithstanding anything to the contrary
contained this Article VII or in any other Loan Documents, (a) with
respect to each of the Mauritius Holding Companies, (i) Dispose of, or create,
incur, assume or suffer to exist any Lien upon, any stock or other Equity
Interests of any other Mauritius Holding Company, Genpact India and any other,
direct or indirect, first tier Indian Subsidiary of Holdings and the Borrower,
or enter into any agreement for such Disposition or Lien, except pursuant to
the India Pledge Agreement; (ii) (A) operate other than as a passive holding
company of the Equity Interests owned by it, conduct, transact or otherwise
engage in, commit to conduct, transact or otherwise engage in, or hold itself
out as conducting, transacting or otherwise engaging in, any business or
operations, and (B) create, incur, assume or suffer to exist any Indebtedness
or other obligation or liability other than the Obligations under the Loan
Documents and, solely with respect to Mauritius Genpact India Investments, any
obligation or liability arising under Indian law solely by virtue of its being
the shareholder or other owner of Equity Interests of Genpact India; provided,
that the Mauritius Holding Companies may receive capital contributions, make
Investments in its direct Subsidiaries and make Restricted Payments to the
extent otherwise permitted in this Article VII; and (iii) all Equity
Interests in each direct or indirect first tier Indian Subsidiary of Holdings
and the Borrower shall be directly owned by Mauritius Genpact India Investments
unless held by another Loan Party.


 


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. 
The Borrower or any other Loan Party fails to (i) pay when and as
required to be paid herein, any amount of principal of any Loan or any L/C
Obligation or deposit any funds as Cash Collateral in respect of L/C
Obligations, or (ii) pay within three days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or
(iii) pay within five days after the same becomes due, any other amount payable
hereunder or under any other Loan Document; or


 


(b)           Specific Covenants. 
(i) Holdings or the Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03,
6.05, 6.11, 6.12, 6.15, or 6.16 or Article
VII, (ii) any of the Guarantors fails to perform or observe any term,
covenant or agreement contained in Section 13 of the Guaranty or (iii)
any of the Loan Parties fails to perform or observe any term, covenant or
agreement contained in Section 5, 11, 14 or 15 of
the Security Agreement; or


 


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(c)           Other Defaults. 
Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after the earlier of (i) notice thereof from the
Administrative Agent or any Lender and (ii) the date on which Holdings, the
Borrower or any of their Subsidiaries acquires knowledge thereof; or


 


(d)           Representations and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower or any
other Loan Party herein, in any other Loan Document, or in any document
delivered in connection herewith or therewith shall be incorrect or misleading
in any material respect when made or deemed made; or


 


(e)           Cross-Default. 
(i) Any Loan Party or any of its Subsidiaries (A) fails to make any
payment when due (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 Threshold Amount, 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, 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 be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), 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 Holdings 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
Holdings or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Loan Party or such Subsidiary as
a result thereof is greater than the Threshold Amount; or


 


(f)            Insolvency Proceedings, Etc.  Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor
Relief Law, or makes an assignment for the benefit of or makes a composition,
compromise or arrangement with, any 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, compulsory manager 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 continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or


 


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(g)           Inability to Pay Debts; Attachment; Seizure.  (i) Any Loan Party or any of its Subsidiaries
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, (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, (iii) all or a material part of the assets,
properties, rights or revenues of, or Equity Interests in, any Loan Party are
seized, nationalized, expropriated or compulsorily acquired by or on behalf of
any Governmental Authority; or (iv) the credit position of any Loan Party
organized under the laws of Luxembourg is weakened (“credit ebranle”)
and such Loan Party finds itself in a position of not being able to pay its
debts (“cessation de paiements”); or


 


(h)           Judgments. 
There is entered against any Loan Party or any of its Subsidiaries a
final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer is rated at least “A” by A.M.
Best Company, has been notified of the potential claim and does not dispute
coverage) and (A) enforcement proceedings are commenced by any creditor upon
such judgment or order, or (B) there is a period of 15 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 Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or
the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower 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 the Threshold Amount; 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 or any
other Person 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 provision of any Loan Document, or
purports to revoke, terminate or rescind any provision of any Loan Document; or


 


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


 


(l)            Collateral Document.  Any Collateral Document after delivery
thereof pursuant to Section 4.01 or 6.12 shall for any reason
(other than pursuant to the terms thereof) cease to create a valid and
perfected first priority lien on the Collateral purported to be covered
thereby; or


 


(m)          MSA.  (i) GE
shall cease to be a party to the MSA or shall cease to be the obligor in
respect of the MVC (as defined therein) thereunder, or (ii) the MSA shall be
terminated.


 


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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 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 Borrower;


 


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


 


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


 


provided,
however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to Holdings or the 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 Borrower 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 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 ratably among them
in proportion to the amounts described in this clause First payable to
them;


 


Second,
to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the
respective Lenders and the L/C Issuer and amounts payable under Article III,
ratably among them in proportion to the amounts described in this clause Second
payable to them;


 


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Third,
to payment of that portion of the Obligations constituting accrued and unpaid
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, L/C Borrowings and amounts owing under Secured Hedge Agreement,
ratably among the Lenders, the L/C Issuer and the Hedge Banks 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;


 


Sixth,
to the payment of all other Obligations of the Loan Parties owing under or in
respect of the Loan Documents that are due and payable to the Administrative
Agent and the other Secured Parties on such date, ratably based upon the
respective aggregate amounts of all such Obligations owing to the
Administrative Agent and the other Secured Parties on such date; and


 


Last,
the balance, if any, after all of the Obligations have been indefeasibly paid
in full, to the Borrower 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.  (a)  Each
of the Lenders and the L/C Issuer hereby irrevocably appoints BA ASIA 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 the Borrower nor any other
Loan Party shall have rights as a third party beneficiary of any of such
provisions.


 


(b)           Bank of America and/or an affiliate shall act as the “collateral
agent” under the Loan Documents, and each of the Lenders (in its capacities
as a Lender, Swing Line Lender (if applicable), potential Hedge Bank and
potential party to a Treasury Management Agreement) and the L/C Issuer hereby
irrevocably appoints and authorizes each of Bank of America and/or an affiliate
to act as the agent of such Lender and the L/C Issuer for purposes of 


 


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acquiring, holding and enforcing any and all
Liens on Collateral granted by any of the Loan Parties to secure any of the
Secured Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection,
Bank of America and/or an affiliate, as “collateral agent” and any co-agents,
sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant
to Section 9.05 for purposes of holding or enforcing any Lien on the
Collateral (or any portion thereof) granted under the Collateral Documents, or
for exercising any rights and remedies thereunder at the direction of the
Administrative Agent, shall be entitled to the benefits of all provisions of
this Article IX and Article XI (including Section 11.04(c),
as though such co-agents, sub-agents and attorneys-in-fact were the “collateral
agent” under the Loan Documents) as if set forth in full herein with respect
thereto.


 


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 Borrower 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, or all of, the Lenders
or affected Lenders, as the case may be, 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


 


(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 the Borrower or any of its
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, or all of, the Lenders or affected Lenders, as the case may be,
as shall be necessary, or as the Administrative Agent shall believe in good
faith shall be necessary, under the circumstances as provided in Sections
11.01 and 8.02) or (ii) in the absence of its own gross 


 


95

















 


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 Borrower, 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 the creation, perfection or
priority of any Lien purported to be created by the Collateral Documents, (v)
the value or the sufficiency of any Collateral, 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 Borrower), 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.  The provisions
of the Loan Documents requiring documents to be satisfactory or reasonably
satisfactory to the Administrative Agent or for the Administrative Agent to
make any determination mean that the Administrative Agent may determine such
satisfaction or make such determination in its own discretion without the need
to consult with or receive consent from any Lender.


 


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 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.


 


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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 Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right 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, with, so long as no Default
or Event of Default shall have occurred and be continuing, the consent of the
Borrower, such consent not to be unreasonably withheld or delayed.  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.  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
hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). 
The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
After the retiring Administrative Agent’s resignation hereunder and
under the other Loan Documents, the provisions of this Article and Section
11.04 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.


 


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, any Joint Mandated Lead Arranger, any Joint Book
Manager 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, any Joint Lead Arranger, any Joint Mandated Book Manager
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 any the Joint Lead Arranger, any Joint Book Manager,
the Documentation Agent, or the Syndication Agent 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, the Collateral 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 receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or 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 


 


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whether the Administrative Agent shall have made any demand on the
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 (other than obligations under Treasury
Management Agreements to which the Administrative Agent is not a party) 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 its 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 11.04) 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, if 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 11.04.


 


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


 


9.10.        Collateral and Guaranty Matters.  The Lenders and the L/C Issuer irrevocably
authorize the Administrative Agent and the Collateral Agent, at its option and
in its discretion,


 


(a)           to release any Lien on any property granted to or held by
the Administrative Agent or the Collateral Agent under any Loan Document (i)
upon termination of the Aggregate Commitments and payment in full of all
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is sold or to be
sold as part of or in connection with any sale permitted hereunder or under any
other Loan Document, (iii) including the release of any shares of Genpact
India upon the redemption of such shares by Genpact India, or (iv) if
approved, authorized or ratified in writing in accordance with Section 11.01
hereof;


 


(b)           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, including pursuant to Section 10.06; and


 


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(c)           to subordinate any Lien on any property granted to or held
by the Administrative Agent or the Collateral Agent under any Loan Document to
the holder of any Lien on such property that is permitted by Section 7.01(i).


 


Upon request by
the Administrative Agent or the Collateral Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s authority to release
its interest in particular types or items of property, or to release any
Guarantor from its obligations under the Guaranty pursuant to this Section
9.10.  In each case as specified in
this Section 9.10, the Administrative Agent or the Collateral Agent
will, at the Borrower’s expense, execute and deliver to the applicable Loan
Party such documents as such Loan Party may reasonably request to evidence the
release of such item of Collateral from the assignment and security interest
granted under the Collateral Documents, or to release such Guarantor from its
obligations under the Guaranty, in each case in accordance with the terms of
the Loan Documents and this Section 9.10.


 


9.11.        References to Collateral Agent.  For purposes of Sections 9.03, 9.04, 9.05,
9.06, 9.07, 9.08 and 9.09, references to the Administrative Agent
shall also be deemed to be references to the Collateral Agent and the
Collateral Agent shall be entitled to the benefits of such Sections to the same
extent as the Administrative Agent.


 


ARTICLE X

CONTINUING GUARANTY


 


10.01.      Guaranty.  Holdings hereby absolutely and
unconditionally guarantees, as a guaranty of payment and performance and not
merely as a guaranty of collection, prompt payment when due, whether at stated
maturity, by required prepayment, upon acceleration, demand or otherwise, and
at all times thereafter, of any and all existing and future indebtedness and
liabilities of every kind, nature and character, direct or indirect, absolute
or contingent, liquidated or unliquidated, voluntary or involuntary and whether
for principal, interest, premiums, fees indemnities, damages, costs, expenses
or otherwise, of the Borrower to the Secured Parties, arising hereunder and
under the other Loan Documents 
(including all renewals, extensions, amendments, refinancings and other
modifications thereof and all costs, attorneys’ fees and expenses incurred by
the Secured Parties in connection with the collection or enforcement thereof),
and whether recovery upon such indebtedness and liabilities may be or hereafter
become unenforceable or shall be an allowed or disallowed claim under any
proceeding or case commenced by or against Holdings, the Borrower or the other
Loan Parties under Debtor Relief Laws, and including interest that accrues
after the commencement by or against the Borrower of any proceeding under any
Debtor Relief Laws (collectively, the “Guaranteed Obligations”).  The Administrative Agent’s books and records
showing the amount of the Guaranteed Obligations shall be admissible in
evidence in any action or proceeding, and shall be binding upon Holdings, and
conclusive for the purpose of establishing the amount of the Guaranteed
Obligations.  This Guaranty shall not be
affected by the genuineness, validity, regularity or enforceability of the
Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed
Obligations, or by the existence, validity, enforceability, perfection, non-perfection
or extent of any collateral therefor, or by any fact or circumstance relating
to the 


 


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Guaranteed Obligations which might otherwise constitute a defense to
the obligations of Holdings under this Guaranty, and Holdings hereby
irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to any or all of the foregoing.


 


10.02.      Rights of Lenders.  Holdings consents and agrees that the Secured
Parties may, at any time and from time to time, without notice or demand, and
without affecting the enforceability or continuing effectiveness hereof:  (a) amend, extend, renew, compromise,
discharge, accelerate or otherwise change the time for payment or the terms of
the Guaranteed Obligations or any part thereof; (b) take, hold, exchange,
enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
security for the payment of this Guaranty or any Guaranteed Obligations; (c)
apply such security and direct the order or manner of sale thereof as the
Administrative Agent, the L/C Issuer and the Lenders in their sole discretion
may determine; and (d) release or substitute one or more of any endorsers or
other guarantors of any of the Guaranteed Obligations.  Without limiting the generality of the
foregoing, Holdings consents to the taking of, or failure to take, any action
which might in any manner or to any extent vary the risks of Holdings under
this Guaranty or which, but for this provision, might operate as a discharge of
Holdings.


 


10.03.      Certain Waivers.  Holdings waives (a) any defense arising by
reason of any disability or other defense of the Borrower or any other
guarantor, or the cessation from any cause whatsoever (including any act or
omission of any Secured Party) of the liability of the Borrower; (b) any
defense based on any claim that Holdings’ obligations exceed or are more
burdensome than those of the Borrower; (c) to the extent permitted by law, the
benefit of any statute of limitations affecting Holdings’ liability hereunder;
(d) any right to proceed against the Borrower, proceed against or exhaust any
security for the Indebtedness, or pursue any other remedy in the power of any
Secured Party whatsoever; (e) any benefit of and any right to participate in
any security now or hereafter held by any Secured Party; and (f) to the fullest
extent permitted by law, any and all other defenses or benefits that may be
derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties. 
Holdings expressly waives all setoffs and counterclaims and all
presentments, demands for payment or performance, notices of nonpayment or
nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the
Guaranteed Obligations, and all notices of acceptance of this Guaranty or of
the existence, creation or incurrence of new or additional Guaranteed
Obligations.


 


10.04.      Obligations Independent.  The obligations of Holdings hereunder are
those of primary obligor, and not merely as surety, and are independent of the
Guaranteed Obligations and the obligations of any other guarantor, and a
separate action may be brought against Holdings to enforce this Guaranty
whether or not the Borrower or any other person or entity is joined as a party.


 


10.05.      Subrogation.  Holdings shall not exercise any right of
subrogation, contribution, indemnity, reimbursement or similar rights with
respect to any payments it makes under this Guaranty until all of the
Guaranteed Obligations and any amounts payable under this Guaranty have been
indefeasibly paid and performed in full and the Revolving Credit Commitments
and the Facilities are terminated.  If
any amounts are paid to Holdings in violation of the foregoing limitation, then
such amounts shall be held in trust for the benefit of the Secured 


 


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Parties and shall forthwith be paid to the Secured Parties to reduce
the amount of the Guaranteed Obligations, whether matured or unmatured.


 


10.06.      Termination; Reinstatement.  This Guaranty is a continuing and irrevocable
guaranty of all Guaranteed Obligations now or hereafter existing and shall
remain in full force and effect until all Guaranteed Obligations and any other
amounts payable under this Guaranty are indefeasibly paid in full in cash and
the Revolving Credit Commitments and the Facilities with respect to the
Guaranteed Obligations are terminated.  Notwithstanding
the foregoing, this Guaranty shall continue in full force and effect or be
revived, as the case may be, if any payment by or on behalf of the Borrower or
Holdings is made, or any of the Secured Parties exercises its right of setoff,
in respect of the Guaranteed Obligations 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 any of the Secured Parties in their discretion) to
be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Laws or otherwise, all as if such payment
had not been made or such setoff had not occurred and whether or not the
Secured Parties are in possession of or have released this Guaranty and
regardless of any prior revocation, rescission, termination or reduction.  The obligations of Holdings under this
paragraph shall survive termination of this Guaranty.


 


10.07.      Subordination.  Holdings hereby subordinates the payment of
all obligations and indebtedness of the Borrower owing to Holdings, whether now
existing or hereafter arising, including but not limited to any obligation of
the Borrower to Holdings as subrogee of the Secured Parties or resulting from
Holdings’ performance under this Guaranty, to the indefeasible payment in full
in cash of all Guaranteed Obligations. 
If the Secured Parties so request, any such obligation or indebtedness
of the Borrower to Holdings shall be enforced and performance received by
Holdings as trustee for the Secured Parties and the proceeds thereof shall be
paid over to the Secured Parties on account of the Guaranteed Obligations, but
without reducing or affecting in any manner the liability of Holdings under
this Guaranty.


 


10.08.      Stay of Acceleration.  If acceleration of the time for payment of
any of the Guaranteed Obligations is stayed, in connection with any case
commenced by or against Holdings or the Borrower under any Debtor Relief Laws,
or otherwise, all such amounts shall nonetheless be payable by Holdings
immediately upon demand by the Secured Parties.


 


10.09.      Condition of Borrower.  Holdings acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from the
Borrower and any other guarantor such information concerning the financial
condition, business and operations of the Borrower and any such other guarantor
as Holdings requires, and that none of the Secured Parties have any duty, and
Holdings is not relying on the Secured Parties at any time, to disclose to
Holdings any information relating to the business, operations or financial
condition of the Borrower or any other guarantor (Holdings waiving any duty on
the part of the Secured Parties to disclose such information and any defense
relating to the failure to provide the same).


 


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ARTICLE XI

MISCELLANEOUS


 


11.01.      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 Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower 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, however,
that no such amendment, waiver or consent shall:


 


(a)           waive any condition set forth in Section 4.01, or,
in the case of the initial Credit Extension, Section 4.02, 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 Documents for any payment (excluding mandatory prepayments) 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
entitled to such payment;


 


(d)           reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the
second proviso to this Section 11.01) any fees or other amounts payable
hereunder or under any other Loan Document without the written consent of each
Lender entitled to such amount; provided, however, 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 the Borrower to pay interest or
Letter of Credit Fees at the Default Rate;


 


(e)           change Section 8.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent
of each Lender (other than to provide for the pro rata sharing by additional
Lenders in connection with any increase in the Facilities or any additional
facility to be included in the Facilities);


 


(f)            change any provision of this Section 11.01 or the
definition of “Required Lenders” (other than to include additional Lenders in
connection with any increase in the Facilities or any additional facility to be
included in the Facilities) 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;


 


(g)           release all or substantially all of the Collateral in any
transaction or series of related transactions, without the written consent of
each Lender;


 


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


 


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(i)            impose any greater restriction on the ability of any
Lender under a Facility to assign any of its rights or obligations hereunder
without the written consent of (i) if such Facility is the Term A Facility, the
Required Term A Lenders and (iii) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders;


 


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.


 


11.02.      Notices and Other Communications; Facsimile
Copies.  (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 the Borrower,
the Administrative Agent, the L/C Issuer or the Swing Line Lender, to the
address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and


 


(ii)           if to any other
Lender, to the address, telecopier number, electronic 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 


 


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such Article by electronic
communication.  The Administrative Agent
or the Borrower 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)           Change of Address, Etc.  Each of the Borrower, 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 Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.


 


(d)           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 the 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 Borrower 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
the Borrower.  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.


 


11.03.      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 or any other Loan
Document 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, and provided under each other Loan
Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.


 


11.04.      Expenses; Indemnity; Damage Waiver.  (a)  Costs
and Expenses.  The Borrower shall pay
(i) all reasonable out-of-pocket expenses incurred by the Administrative 


 


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Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for 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 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 and management time spent by agency officers of the Administrative
Agent), 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 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 Borrower.  The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, each of the Joint Mandated Lead Arrangers, each of the Joint Book
Managers, the Documentation Agent, the Syndication Agent, 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), incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the 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, the occurrence
of any Default, the failure or alleged failure of any information produced or
approved by or on behalf of the Borrower (including, without limitation, any
materials provided to potential Lenders) to comply with the provisions of Section
5.14, (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 Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective 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 Borrower or any other Loan Party or any of the Borrower’s or
such Loan Party’s directors, shareholders or creditors, and regardless of
whether any Indemnitee is a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents is
consummated, in all cases, whether or not caused by or arising, in whole or in
part, out of the comparative, contributory or sole negligence of the
Indemnitee; 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 


 


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claim brought by the Borrower 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 Borrower 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.


 


(c)           Reimbursement by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under subsection (a) or
(b) of this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, 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, the Borrower shall not 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 by it
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.


 


(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 replacement of any Lender, the termination of the
Aggregate Commitments and the repayment, satisfaction or discharge of all the
other Obligations.


 


11.05.      Payments Set Aside.  To the extent that any payment by or on
behalf of the 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 thereof originally
intended to be satisfied shall be revived and continued in full force and
effect 


 


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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 Federal Funds Rate from time to time in
effect.  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.


 


11.06.      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 neither Holdings nor any other Loan Party 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 Eligible Assignee in accordance with the provisions of Section
11.06(b), (ii) by way of participation in accordance with the provisions of
Section 11.06(d), or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 11.06(f) (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 Eligible 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 Section 11.06(b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided
that


 


(i)            except 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 or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable Commitment
is not then in effect, the principal outstanding balance of the Loan 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 Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $1,000,000, in the
case of any assignment in respect of the Revolving Credit Facility, or
$1,000,000, in the case of any assignment in respect of the Term Facility,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed);


 


(ii)           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 


 


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respect to the
Loans or the Commitment assigned, except that this clause (ii) shall not
(A) apply to rights in respect of Swing Line Loans or (B) prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
Facilities on a non-pro rata basis;


 


(iii)          any assignment of a
Revolving Credit Commitment must be approved by the Administrative Agent, the
L/C Issuer and the Swing Line Lender (in each case, such approval shall not be
unreasonably withheld or delayed) unless the Person that is the proposed
assignee is itself a Revolving Credit Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee);


 


(iv)          the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $1,500; provided
that (A) no such fee shall be payable in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund with respect to a Lender and (B)
in the case of contemporaneous assignments by a Lender to one or more Funds
managed by the same investment advisor (which Funds are not then Lenders
hereunder), only a single such $1,500 fee shall be payable for all such
contemporaneous assignments; and


 


(v)           and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.


 


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 Eligible 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 (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 11.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment), provided, that no Eligible Assignee
shall be entitled to a greater amount pursuant to Section 3.01 on the
date of the assignment than the applicable Lender assignor would have been
entitled to receive on the date of the assignment and no such assignment
occurred.  Upon request, the 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 Section 11.06(d).


 


(c)           Register. 
The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, 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 Revolving Credit
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to 


 


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time (the “Register”).  The entries in the Register shall be
conclusive absent manifest error, and the Borrower, 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 each of the Borrower and the L/C Issuer at any reasonable time
and from time to time upon reasonable prior notice.  In addition, at any time that a request for a
consent for a material or other substantive change to the Loan Documents is
pending, any Lender may request and receive from the Administrative Agent a
copy of the Register.


 


(d)           Participations. 
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower’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 Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.  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 11.01 that
directly affects such Participant. 
Subject to subsection (e) of this Section, the 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 Section 11.06(b). 
To the extent permitted by law, each Participant also shall be entitled
to the benefits of Section 11.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


(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 Borrower’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 Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section
3.01(e) and (f) 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.


 


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(g)           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 Revolving Credit Commitments and Revolving Credit Loans pursuant to Section
11.06(b), Bank of America may, (i) upon 30 days’ notice to the Borrower and
the Lenders, resign as L/C Issuer and/or (ii) upon 30 days’ notice to the
Borrower, resign as Swing Line Lender. 
In the event of any such resignation as L/C Issuer or Swing Line Lender,
the Borrower shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder. 
If Bank of America resigns as L/C Issuer, it shall retain all the rights
and obligations 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 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 Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c).


 


11.07.      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,
representatives and contractors (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), (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), (c) to the extent required by
applicable Laws or by any subpoena or similar legal process, (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 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 or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) 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 Borrower.


 


For the purposes
of this Section, “Information” means all information received from any
Loan Party relating to any Loan Party or their respective businesses, other
than any such information that is available to the Administrative Agent, the
L/C Issuer or any Lender on a nonconfidential basis prior to disclosure by any
Loan Party.  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.


 


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11.08.      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 the Borrower or any other Loan Party against any and
all of the obligations of the Borrower or such Loan Party 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 the Borrower or such Loan Party 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 Borrower 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.


 


11.09.      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 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 Borrower. 
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.


 


11.10.      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 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.


 


11.11.      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 


 


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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.


 


11.12.      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.


 


11.13.      Replacement of Lenders.  If (v) any Lender requests compensation under
Section 3.04, (w) the 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, (x) any Lender is a Defaulting Lender, (y) any
Lender is required to be prepaid pursuant to Section 3.02 or (z) any
requested consent, waiver or amendment in question requires the agreement of
all affected Lenders in accordance with the terms of Section 11.01 and the
Required Lenders have agreed to such consent, waiver or amendment, any Lender
who does not agree to such consent, waiver or amendment, then the Borrower 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 11.06), 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 Borrower shall have paid to the Administrative Agent
the assignment fee specified in Section 11.06(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.


 


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A Lender shall not
be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.


 


11.14.      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.  THE BORROWER AND EACH OTHER LOAN PARTY
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 COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, 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.  TO THE EXTENT
THAT EITHER OF HOLDINGS OR THE BORROWER HAS OR HEREAFTER MAY ACQUIRE 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) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH
OF HOLDINGS AND THE BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT
OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS
AND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AGREES THAT THE WAIVERS
SET FORTH HEREIN SHALL HAVE THE FULLEST SCOPE PERMITTED UNDER THE FOREIGN
SOVEREIGN IMMUNITIES ACT OF 1976 OF THE UNITED STATES AND ARE INTENDED TO BE
IRREVOCABLE FOR PURPOSES OF SUCH ACT. 
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 ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN
THE COURTS OF ANY JURISDICTION.


 


(c)           WAIVER OF VENUE. 
THE BORROWER AND EACH OTHER LOAN PARTY 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 


 


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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 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


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


 


11.16.      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 Borrower 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 each Loan Party, which information includes the
name and address of each Loan Party and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify each Loan Party
in accordance with the Act.


 


11.17.      Agent for Service of Process. 
Each of the Borrower and Holdings hereby agrees that service of process
in any action or proceeding brought in any New York State court or federal
court may be made upon Eileen S. Silvers at her offices at Genpact U.S.
Holdings, Inc., 41st Floor, 1251 Avenue of the Americas, New York,
NY 10020 (the “Process Agent”) and each of the Borrower and Holdings
hereby irrevocably appoints the Process Agent its authorized agent to accept
such service of process, and agrees that the failure of the Process Agent to
give any notice of any such service shall not impair or affect the validity of
such service or of any judgment rendered in any action or proceeding based
thereon.


 


11.18.      Judgment Currency.  The obligation of any Loan Party in respect
of any sum due from it in any currency (the “Primary Currency”) to any
Lender, the L/C Issuer or the Administrative Agent hereunder shall,
notwithstanding any judgment in any other currency, be 


 


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discharged only to the extent that on the Business Day following
receipt by such Lender, the L/C Issuer, or the Administrative Agent (as the
case may be), of any sum adjudged to be so due in other currency, such Lender,
the L/C Issuer or the Administrative Agent (as the case may be) may in
accordance with normal banking procedures purchase the applicable Primary
Currency with such other currency; if the amount of the applicable Primary
Currency so purchased is less than such sum due to such Lender, the L/C Issuer
or the Administrative Agent (as the case may be) in the applicable Primary
Currency, each Loan Party agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify, within three Business Days of demand, any such
Lender, the L/C Issuer or the Administrative Agent (as the case may be) against
such loss, and if the amount of the applicable Primary Currency so purchased
exceeds such sum due to any Lender, the L/C Issuer or the Administrative Agent
(as the case may be) in the applicable Primary Currency, such Lender, the L/C
Issuer or the Administrative Agent (as the case may be) agrees to remit to such
Loan Party the excess.  To the fullest
extent permitted by law, each of Holdings and the Borrower waives any right it
may have in any jurisdiction to pay any amount under the Loan Documents in a
currency other than Dollars.


 


115

















 


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


 


	
   

  	
  GENPACT INTERNATIONAL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name

  
	
   

  	
  Title:

  



 


 


	
   

  	
  GENPACT GLOBAL HOLDINGS
  SICAR SARL

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  BANC OF AMERICA
  SECURITIES ASIA

  LIMITED, as Administrative Agent and Collateral

  Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  BANK OF AMERICA,
  N.A, as Lender, L/C Issuer,

  Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  ABN AMRO BANK N.V., as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  CITIBANK, N.A., LONDON
  BRANCH,

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  GENERAL ELECTRIC
  CAPITAL

  CORPORATION, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  BNP PARIBAS, SINGAPORE
  BRANCH, 

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  DBS BANK LTD., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  ICIC BANK LIMITED,
  SINGAPORE BRANCH,

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  RAIFFEISEN ZENTRALBANK
  OESTERREICH

  AG, SINGAPORE BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  COOPERATIVE RAIFFESISEN
  -

  BOERENLEENBANK, B.A. (RABOBANK

  NEDERLAND), SINGAPORE BRANCH, as

  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  THE BANK OF NOVA SCOTIA
  ASIA LIMITED,

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  SCOTIABANK (HONG KONG)
  LIMITED, 

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  



 

















 


	
   

  	
  THE SUMITOMO TRUST
  & BANKING CO.,

  LTD., SINGAPORE BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL

  ASSOCIATION, 

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  BANQUE DES MASCAREIGNES
  LTEE, 

  as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  FIRST COMMERCIAL BANK,
  SINGAPORE

  BRANCH, as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: