Exhibit 10.1


 


 


REVOLVING
CREDIT AGREEMENT


 


dated
as of


 


June 30,
2004


 


among


 


WATSON
WYATT & COMPANY,
as Borrower



THE
LENDERS FROM TIME TO TIME PARTY HERETO



and



SUNTRUST BANK,


as Administrative Agent


 




 





 


 


SUNTRUST
ROBINSON HUMPHREY,

a division of SunTrust Capital Markets, Inc.,
as Lead Arranger


 

















 


TABLE OF CONTENTS


 


 


	
  ARTICLE 1  DEFINITIONS;
  CONSTRUCTION

  	
   

  	
   

  
	
  Section 1.1.  Definitions

  	
   

  	
   

  
	
  Section 1.2.  Classifications of Loans and Borrowings

  	
   

  	
   

  
	
  Section 1.3.  Accounting Terms and Determination

  	
   

  	
   

  
	
  Section 1.4.  Terms Generally

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2  AMOUNT AND
  TERMS OF THE COMMITMENTS

  	
   

  	
   

  
	
  Section 2.1.  General Description of Facilities

  	
   

  	
   

  
	
  Section 2.2.  Revolving Loans

  	
   

  	
   

  
	
  Section 2.3.  Procedure for Revolving Borrowings

  	
   

  	
   

  
	
  Section 2.4.  Swingline Commitment.

  	
   

  	
   

  
	
  Section 2.5.  Funding of Borrowings.

  	
   

  	
   

  
	
  Section 2.6.  Multi-Currency Options.

  	
   

  	
   

  
	
  Section 2.7.  Interest Elections.

  	
   

  	
   

  
	
  Section 2.8.  Optional Reduction and Termination of
  Commitments.

  	
   

  	
   

  
	
  Section 2.9.  Repayment of Loans.

  	
   

  	
   

  
	
  Section 2.10.  Evidence of Indebtedness.

  	
   

  	
   

  
	
  Section 2.11.  Optional Prepayments

  	
   

  	
   

  
	
  Section 2.12.  Mandatory Prepayments

  	
   

  	
   

  
	
  Section 2.13.  Interest on Loans.

  	
   

  	
   

  
	
  Section 2.14.  Fees.

  	
   

  	
   

  
	
  Section 2.15.  Computation of Interest and Fees.

  	
   

  	
   

  
	
  Section 2.16.  Inability to Determine Interest Rates

  	
   

  	
   

  
	
  Section 2.17.  Illegality

  	
   

  	
   

  
	
  Section 2.18.  Increased Costs.

  	
   

  	
   

  
	
  Section 2.19.  Funding Indemnity

  	
   

  	
   

  
	
  Section 2.20.  Taxes.

  	
   

  	
   

  
	
  Section 2.21.  Payments Generally; Pro Rata Treatment;
  Sharing of Set-offs.

  	
   

  	
   

  
	
  Section 2.22.  Letters of Credit.

  	
   

  	
   

  
	
  Section 2.23.  Increase of Commitments; Additional
  Lenders.

  	
   

  	
   

  
	
  Section 2.24.  Mitigation of Obligations

  	
   

  	
   

  
	
  Section 2.25.  Replacement of Lenders

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3  CONDITIONS
  PRECEDENT TO LOANS AND LETTERS OF CREDIT

  	
   

  	
   

  
	
  Section 3.1.  Conditions To Effectiveness

  	
   

  	
   

  
	
  Section 3.2.  Each Credit Event

  	
   

  	
   

  
	
  Section 3.3.  Delivery of Documents

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 
  REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  



 


i

















 


	
  Section 4.1.  Existence; Power

  	
   

  	
   

  
	
  Section 4.2.  Organizational Power; Authorization

  	
   

  	
   

  
	
  Section 4.3.  Governmental Approvals; No Conflicts

  	
   

  	
   

  
	
  Section 4.4.  Financial Statements

  	
   

  	
   

  
	
  Section 4.5.  Litigation and Environmental Matters.

  	
   

  	
   

  
	
  Section 4.6.  Compliance with Laws and Agreements

  	
   

  	
   

  
	
  Section 4.7.  Investment Company Act, Etc

  	
   

  	
   

  
	
  Section 4.8.  Taxes

  	
   

  	
   

  
	
  Section 4.9.  Margin Regulations

  	
   

  	
   

  
	
  Section 4.10.  ERISA

  	
   

  	
   

  
	
  Section 4.11.  Ownership of Property.

  	
   

  	
   

  
	
  Section 4.12.  Disclosure

  	
   

  	
   

  
	
  Section 4.13.  Labor Relations

  	
   

  	
   

  
	
  Section 4.14.  Subsidiaries

  	
   

  	
   

  
	
  Section 4.15.  Insolvency

  	
   

  	
   

  
	
  Section 4.16.  OFAC

  	
   

  	
   

  
	
  Section 4.17.  Patriot Act

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5  AFFIRMATIVE
  COVENANTS

  	
   

  	
   

  
	
  Section 5.1.  Financial Statements and Other Information

  	
   

  	
   

  
	
  Section 5.2.  Notices of Material Events

  	
   

  	
   

  
	
  Section 5.3.  Existence; Conduct of Business

  	
   

  	
   

  
	
  Section 5.4.  Compliance with Laws, Etc

  	
   

  	
   

  
	
  Section 5.5.  Payment of Obligations

  	
   

  	
   

  
	
  Section 5.6.  Books and Records

  	
   

  	
   

  
	
  Section 5.7.  Visitation,
  Inspection, Etc

  	
   

  	
   

  
	
  Section 5.8.  Maintenance of Properties; Insurance

  	
   

  	
   

  
	
  Section 5.9.  Use of Proceeds and Letters of Credit

  	
   

  	
   

  
	
  Section 5.10.  Additional Subsidiaries.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6  FINANCIAL
  COVENANTS

  	
   

  	
   

  
	
  Section 6.1.  Leverage Ratio

  	
   

  	
   

  
	
  Section 6.2.  Fixed Charge Coverage Ratio

  	
   

  	
   

  
	
  Section 6.3.  Minimum Asset Coverage Ratio

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7  NEGATIVE
  COVENANTS

  	
   

  	
   

  
	
  Section 7.1.  Indebtedness and Preferred Equity

  	
   

  	
   

  
	
  Section 7.2.  Negative Pledge

  	
   

  	
   

  
	
  Section 7.3.  Fundamental Changes.

  	
   

  	
   

  
	
  Section 7.4.  Investments, Loans, Etc

  	
   

  	
   

  
	
  Section 7.5.  Restricted Payments

  	
   

  	
   

  
	
  Section 7.6.  Sale of Assets

  	
   

  	
   

  
	
  Section 7.7.  Transactions with Affiliates

  	
   

  	
   

  
	
  Section 7.8.  Restrictive Agreements

  	
   

  	
   

  



 


ii

















 


	
  Section 7.9.  Sale and Leaseback Transactions

  	
   

  	
   

  
	
  Section 7.10.  Hedging Transactions

  	
   

  	
   

  
	
  Section 7.11.  Amendment to Material Documents

  	
   

  	
   

  
	
  Section 7.12.  Accounting Changes

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8  EVENTS OF
  DEFAULT

  	
   

  	
   

  
	
  Section 8.1.  Events of Default

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9  THE
  ADMINISTRATIVE AGENT

  	
   

  	
   

  
	
  Section 9.1.  Appointment of Administrative Agent.

  	
   

  	
   

  
	
  Section 9.2.  Nature of Duties of Administrative Agent

  	
   

  	
   

  
	
  Section 9.3.  Lack of Reliance on the Administrative
  Agent

  	
   

  	
   

  
	
  Section 9.4.  Certain Rights of the Administrative Agent

  	
   

  	
   

  
	
  Section 9.5.  Reliance by Administrative Agent

  	
   

  	
   

  
	
  Section 9.6.  The Administrative Agent in its Individual
  Capacity

  	
   

  	
   

  
	
  Section 9.7.  Successor Administrative Agent.

  	
   

  	
   

  
	
  Section 9.8.  Authorization to Execute other Loan
  Documents

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10  MISCELLANEOUS

  	
   

  	
   

  
	
  Section 10.1.  Notices.

  	
   

  	
   

  
	
  Section 10.2.  Waiver; Amendments.

  	
   

  	
   

  
	
  Section 10.3.  Expenses; Indemnification.

  	
   

  	
   

  
	
  Section 10.4.  Successors and Assigns.

  	
   

  	
   

  
	
  Section 10.5.  Governing Law; Jurisdiction; Consent to
  Service of Process.

  	
   

  	
   

  
	
  Section 10.6.  WAIVER OF JURY TRIAL

  	
   

  	
   

  
	
  Section 10.7.  Right of Setoff

  	
   

  	
   

  
	
  Section 10.8.  Counterparts; Integration

  	
   

  	
   

  
	
  Section 10.9.  Survival

  	
   

  	
   

  
	
  Section 10.10.  Severability

  	
   

  	
   

  
	
  Section 10.11.  Confidentiality

  	
   

  	
   

  
	
  Section 10.12.  Interest Rate Limitation

  	
   

  	
   

  
	
  Section 10.13.  Waiver of Effect of Corporate Seal

  	
   

  	
   

  



 


iii

















 


	
  Schedules

  	
   

  	
   

  
	
  Schedule I

  	
  -

  	
  Applicable
  Margin and Applicable Percentage

  
	
  Schedule 1.1

  	
  -

  	
  Foreign Currency Payment Accounts

  
	
  Schedule 4.5

  	
  -

  	
  Environmental
  Matters

  
	
  Schedule 4.14

  	
  -

  	
  Subsidiaries

  
	
  Schedule 7.1

  	
  -

  	
  Outstanding
  Indebtedness

  
	
  Schedule 7.2

  	
  -

  	
  Existing
  Liens

  
	
  Schedule 7.4

  	
  -

  	
  Existing
  Investments

  
	
   

  	
   

  	
   

  
	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  -

  	
  Form of Revolving Credit Note

  
	
  Exhibit B

  	
  -

  	
  Form of Swingline Note

  
	
  Exhibit C

  	
  -

  	
  Form of Assignment and Acceptance

  
	
  Exhibit D-1

  	
  -

  	
  Form of Parent Guaranty Agreement

  
	
  Exhibit D-2

  	
  -

  	
  Form of Subsidiary Guaranty Agreement

  
	
  Exhibit E

  	
  -

  	
  Form of Pledge Agreement

  
	
  Exhibit 2.3

  	
  -

  	
  Form of Notice of Revolving Borrowing

  
	
  Exhibit 2.4

  	
  -

  	
  Form of Notice of Swingline Borrowing

  
	
  Exhibit 2.6

  	
  -

  	
  Form of Continuation/Conversion

  
	
  Exhibit 5.1(c)

  	
  -

  	
  Form of Compliance Certificate

  



 

















 


REVOLVING
CREDIT AGREEMENT


 


THIS REVOLVING CREDIT
AGREEMENT (this “Agreement”) is made and
entered into as of June 30, 2004, by and among WATSON WYATT & COMPANY,
a Delaware corporation (the “Borrower”), the several banks and other
financial institutions and lenders from time to time party hereto (the “Lenders”),
and SUNTRUST BANK, a Georgia banking corporation, in its capacity as
administrative agent for the Lenders (the “Administrative Agent”), as
issuing bank (the “Issuing Bank”) and as swingline lender (the “Swingline
Lender”).


 


W I T N E S S E T H:


 


WHEREAS, the
Borrower has requested that the Lenders establish in favor of Borrower a
$50,000,000 senior revolving credit facility with a $10,000,000 swingline
subfacility  and a $15,000,000 letter of
credit subfacility;


 


WHEREAS, subject to
the terms and conditions of this Agreement, the Lenders, the Issuing Bank and
the Swingline Lender to the extent of their respective Commitments as defined
herein, are willing severally to establish the requested revolving credit
facility, letter of credit subfacility and the swingline subfacility in favor
of the Borrower.


 


NOW, THEREFORE,
in consideration of the premises and the mutual covenants herein contained, the
Borrower, the Lenders, the Administrative Agent, the Issuing Bank and the
Swingline Lender agree as follows:


 


ARTICLE 1



DEFINITIONS; CONSTRUCTION


 


Section 1.1.           Definitions.  In addition to the other terms defined
herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of
the terms defined):


 


“Additional Lender” shall have the
meaning given to such term in Section 2.23.


 


“Adjusted LIBO Rate” shall mean, with
respect to each Interest Period for a Eurodollar Borrowing, the rate per annum
obtained by dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurodollar Reserve Percentage.


 


“Administrative Questionnaire” shall
mean, with respect to each Lender, an administrative questionnaire in the form
prepared by the Administrative Agent and submitted to the Administrative Agent
duly completed by such Lender.


 


“Affiliate” shall mean, as to any
Person, any other Person that directly, or indirectly through one or more
intermediaries, Controls, is Controlled by, or is under common Control with,
such Person.  For the purposes of this
definition, “Control” shall mean the power, directly


 

















 


or indirectly,
either to (i) vote 10%
or more of the securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by control or otherwise.  The terms “Controlling”, “Controlled by”,
and “under common Control with” have the meanings correlative thereto.


 


“Aggregate Revolving Commitment Amount”
shall mean the aggregate principal amount of the Aggregate Revolving
Commitments from time to time.  On the
Closing Date, the Aggregate Revolving Commitment Amount equals $50,000,000.


 


“Aggregate Revolving Commitments”
shall mean, collectively, all Revolving Commitments of all Lenders at any time
outstanding.


 


“Aggregate Subsidiary Threshold” shall
mean an amount equal to ninety-eight percent (98%) of the total consolidated revenue or
assets of the Consolidated Group for the most recent Fiscal Quarter as shown on
the financial statements most recently delivered or required to be delivered
pursuant to Section 5.1(a) or (b), as the case may
be.


 


“Applicable Lending Office” shall
mean, for each Lender and for each Type of Loan, the “Lending Office” of such
Lender (or an Affiliate of such Lender) designated for such Type of Loan in the
Administrative Questionnaire submitted by such Lender or such other office of
such Lender (or an Affiliate of such Lender) as such Lender may from time to
time specify to the Administrative Agent and the Borrower as the office by
which its Loans of such Type are to be made and maintained.


 


“Applicable Margin” shall mean, as of
any date, with respect to interest on all Revolving Loans outstanding on any
date or the
letter of credit fee, as the case may be, a percentage per annum
determined by reference to the applicable Leverage Ratio from time to time in
effect as set forth on Schedule I; provided, that a change
in the Applicable Margin resulting from a change in the Leverage Ratio shall be
effective on the second Business Day after which the Borrower delivers the
financial statements required by Section 5.1(a) or (b) and
the Compliance Certificate required by Section 5.1 (c); provided
further, that if at any time the Borrower shall have failed to deliver such
financial statements and such Compliance Certificate when so required, the
Applicable Margin shall be at Level I as set forth on Schedule I
until such time as such financial statements and Compliance Certificate are
delivered, at which time the Applicable Margin shall be determined as provided
above.  Notwithstanding the foregoing,
the Applicable Margin from the Closing Date until the financial statements and
Compliance Certificate for the Fiscal Quarter ending June 30, 2004 are required to be delivered shall be at
Level IV as set forth on Schedule I.


 


“Applicable Percentage” shall mean, as
of any date, with respect to the  commitment fee as of any date, the
percentage per annum determined by reference to the applicable Leverage Ratio
in effect on such date as set forth on Schedule I; provided,
that a change in the Applicable Percentage resulting from a change in the
Leverage Ratio shall be effective on the second Business Day after which the
Borrower delivers the financial statements required by Section 5.1(a)
or (b) and the Compliance Certificate required by Section 5.1(c);
provided  further, that if


 


2

















 


at any time
the Borrower shall have failed to deliver such financial statements and such
Compliance Certificate, the Applicable Percentage shall be at Level I as set
forth on Schedule I until such time as such financial statements
and Compliance Certificate are delivered, at which time the Applicable
Percentage shall be determined as provided above.  Notwithstanding the foregoing, the Applicable Percentage for the commitment fee from the Closing Date
until the financial statements and Compliance Certificate for the Fiscal
Quarter ending June 30, 2004
are required to be delivered shall be at Level IV as set forth on Schedule I.


 


“Approved Fund” shall mean 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 and that is
administered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii)
an entity or an Affiliate of an entity that administers or manages a Lender.


 


“Assignment and Acceptance” shall mean
an assignment and acceptance entered into by a Lender and an assignee (with the
consent of any party whose consent is required by Section 10.4(b))
and accepted by the Administrative Agent, in the form of Exhibit C
attached hereto or any other form approved by the Administrative Agent.


 


“Australian Dollars” and the sign
“aus$” shall mean lawful money of the Commonwealth of Australia.


 


“Available Foreign Currency” shall
mean (i) Euros, Japanese Yen, Australian Dollars, Canadian Dollars, New Zealand
Dollars, Hong Kong Dollars and (ii) any other freely available currency which
the Administrative Agent customarily lends in and which is freely transferable
and freely convertible into Dollars and in which dealings in deposits are
carried on in the London interbank market, which shall be requested by the
Borrower and approved by the Administrative Agent.


 


“Availability Period”
shall mean the period from the Closing Date to the Revolving Commitment Termination
Date.


 


“Base Rate” shall mean the higher of
(i) the per annum rate which the Administrative Agent publicly announces
from time to time to be its prime lending rate, as in effect from time to time,
and (ii) the Federal Funds Rate, as in effect from time to time, plus
one-half of one percent (0.50%).  The
Administrative Agent’s prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to customers.  The Administrative Agent may make commercial
loans or other loans at rates of interest at, above or below the Administrative
Agent’s prime lending rate.  Each change
in the Administrative Agent’s prime lending rate shall be effective from and
including the date such change is publicly announced as being effective.


 


“Borrowing”  shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in the case
of Eurodollar Loans, as to which a single Interest Period is in effect, or (ii)
a Swingline Loan.


 


3

















 


“Business Day” shall mean (i) any day
other than a Saturday, Sunday or other day on which commercial banks in
Atlanta, Georgia and
New York, New York are authorized or required by law to close and (ii) if
such day relates to a Borrowing of, a payment or prepayment of principal or
interest on, a conversion of or into, or an Interest Period for, a Eurodollar
Loan or a notice with respect to any of the foregoing, any day on which
dealings in Dollars or the applicable Available Foreign Currency are carried on
in the London interbank market.


 


“Canadian Loan Program” shall mean the
Borrower’s employee loan program established for the benefit of its Canadian
employees.


 


“Capital Expenditures” shall mean for
any period, without duplication, (i) the additions to property, plant and
equipment and other capital expenditures of the Consolidated Group that are (or
would be) set forth on a consolidated statement of cash flows of the
Consolidated Group for such period prepared in accordance with GAAP and (ii)
Capital Lease Obligations incurred by the Consolidated Group during such
period.


 


“Capital Lease Obligations” of any
Person shall mean all obligations of such Person to pay rent or other amounts
under any lease (or other arrangement conveying the right to use) of real or
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.


 


“Capital Stock” shall mean any
non-redeemable capital stock (or in the case of a partnership or limited
liability company, the partners’ or members’ equivalent equity interest) of the
Borrower or any of its Subsidiaries (to the extent issued to a Person other
than the Borrower), whether common or preferred.


 


“Change in Control” shall mean the
occurrence of one or more of the following events:  (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Parent Guarantor or Borrower to any Person or “group” (within
the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder in effect on the date hereof),
(b) the acquisition of ownership, directly or indirectly, beneficially or of
record, by any Person or “group” (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder
as in effect on the date hereof) of 20% or more of the outstanding shares of
the voting stock of the Parent Guarantor or Borrower; or (c) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
the Parent Guarantor or Borrower by Persons who were neither (i) nominated by
the current board of directors nor (ii) appointed by the current directors.


 


“Change in Law” shall mean (i) the
adoption of any applicable law, rule or regulation after the date of this
Agreement, (ii) any change in any applicable law, rule or regulation, or any
change in the interpretation or application thereof, by any Governmental
Authority after the date of this Agreement, or (iii) compliance by any Lender
(or its Applicable Lending Office) or the


 


4

















 


Issuing Bank
(or for purposes of Section 2.18(b), by such Lender’s or the
Issuing Bank’s parent corporation, if applicable) with any request, guideline
or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.


 


“Class”,  when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans and when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Commitment, or a Swingline Commitment.


 


“Closing Date” shall mean the date on
which the conditions precedent set forth in Section 3.1 and Section 3.2
have been satisfied or waived in accordance with Section 10.2.


 


“Code” shall mean the Internal Revenue
Code of 1986, as amended and in effect from time to time.


 


“Commitment” shall mean a Revolving
Commitment or a Swingline Commitment or a combination thereof (as the context
shall permit or require).


 


“Compliance Certificate” shall mean a
certificate from the principal executive officer and the principal financial
officer of the Borrower in the form of, and containing the certifications set
forth in, the certificate attached hereto as Exhibit 5.1(c).


 


“Consolidated EBITDA” shall mean, for
the Consolidated Group for any period, an amount equal to the sum of (i)
Consolidated Net Income for such period plus (ii) to the extent deducted in
determining Consolidated Net Income for such period, (A) Consolidated Interest
Expense, (B) income tax expense determined on a consolidated basis in
accordance with GAAP, (C) depreciation and amortization determined on a
consolidated basis in accordance with GAAP, and (D) all other non-cash
charges acceptable to the Administrative Agent, determined on a consolidated
basis in accordance with GAAP, in each case for such period.


 


“Consolidated EBITR” shall mean, for
the Consolidated Group for any period, an amount equal to the sum of (i)
Consolidated EBITDA for such period less,
to the extent added to Consolidated Net Income in determining Consolidated
EBITDA for such period, depreciation and amortization determined on a
consolidated basis in accordance with GAAP, plus
(iii) Consolidated Lease Expense for such period.


 


“Consolidated Group” shall mean the
Parent Guarantor and its consolidated Subsidiaries (including the Borrower), as
determined in accordance with GAAP.


 


“Consolidated Interest Expense” shall
mean, for the Consolidated Group for any period determined on a consolidated
basis in accordance with GAAP, the sum of (i) total interest expense, including
without limitation the interest component of any payments in respect of Capital
Lease Obligations capitalized or expensed during such period  (whether or not actually paid during such
period)  plus (ii) the net amount
payable (or minus
the net amount receivable) under Hedging Agreements during such period (whether
or not actually paid or received during such period).


 


5

















 


“Consolidated Lease Expense” shall
mean, for the Consolidated Group for any period, the aggregate amount of fixed
and contingent rentals payable with respect to leases of real and personal
property (excluding Capital Lease Obligations) determined on a consolidated
basis in accordance with GAAP for such period.


 


“Consolidated Net Income” shall mean,
for the Consolidated Group for any period, the net income (or loss) of the Consolidated
Group for such period determined on a consolidated basis in accordance with
GAAP, but excluding therefrom (to the extent otherwise included therein)
(i) any extraordinary gains or losses, (ii) any gains attributable to
write-ups of assets, (iii) any equity interest of any member of the
Consolidated Group in the unremitted earnings of any Person that is not a
Subsidiary and (iv) any income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary or is merged into or consolidated with any member
of the Consolidated Group on the date that such Person’s assets are acquired by
any member of the Consolidated Group.


 


“Contractual Obligation” of any Person
shall mean any provision of any security issued by such Person or of any
agreement, instrument or undertaking under which such Person is obligated or by
which it or any of the property in which it has an interest is bound.


 


“CSAP” shall mean the Borrower’s
Canadian Separation Allowance Plan established for the benefit of the
Borrower’s Canadian employees in connection with the Canadian Loan Program.


 


“Default” shall mean any condition or
event that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.


 


“Default Interest” shall have the
meaning set forth in Section 2.13(c).


 


“Domestic Subsidiary” shall mean any
Subsidiary that is incorporated or organized under the laws of any State of the
United States or the District of Columbia.


 


“Dollar(s)” and the sign “$” shall
mean lawful money of the United States of America.


 


“Dollar Equivalent” shall mean, on any
date, with respect to an amount denominated in any Available Foreign Currency,
the amount of Dollars into which the Administrative Agent could, in accordance
with its practice, convert such amount of Available Foreign Currency in the
interbank foreign exchange market at its spot rate of exchange (inclusive of
all reasonably related costs of conversion, if any, that are actually incurred)
at or about 10:00 a.m. (Atlanta, Georgia time), on such date.


 


“Eligible Assignee” shall mean (i) a
Lender; (ii) an Affiliate of a Lender; (iii) an Approved Fund; and (iv) any
other Person (other than a natural Person) approved by the Administrative
Agent, the Issuing Bank, and unless (x) such Person is taking delivery of an
assignment in connection with physical settlement of a credit derivatives
transaction or (y) an Event of Default has occurred and is continuing, the
Borrower (each such approval not to be unreasonably withheld or delayed).  If the consent of the Borrower to an
assignment or to an


 


6

















 


Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment thresholds specified in paragraph (b)(i) of Section 10.4),
the Borrower shall be deemed to have given its consent five Business Days after
the date notice thereof has actually been delivered by the assigning Lender
(through the Administrative Agent) to the Borrower, unless such consent is
expressly refused by the Borrower prior to such fifth Business Day.


 


“Employee Stock Loans” shall mean
loans by Bank of America, N.A. to various employees of the Borrower that are
guaranteed by the Borrower.


 


“Environmental Laws” shall mean all
laws, rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions, notices or binding agreements issued, promulgated or entered into
by or with any Governmental Authority, relating in any way to the environment,
preservation or reclamation of natural resources, the management, Release or
threatened Release of any Hazardous Material or to health and safety matters.


 


“Environmental Liability” shall mean
any liability, contingent or otherwise (including any liability for damages,
costs of environmental investigation and remediation, costs of administrative
oversight, fines, natural resource damages, penalties or indemnities), of the
Borrower or any Subsidiary directly or indirectly resulting from or based upon
(i) any actual or alleged violation of any Environmental Law, (ii) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (iii) any actual or alleged exposure to any Hazardous
Materials, (iv) the Release or threatened Release of any Hazardous Materials or
(v) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.


 


“ERISA” shall mean the Employee
Retirement Income Security Act of 1974, as amended from time to time, and any
successor statute.


 


“ERISA Affiliate” shall mean any trade
or business (whether or not incorporated), which, together with any member of
the Consolidated Group, is treated as a single employer under
Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.


 


“ERISA Event”  shall mean (i) any
“reportable event”, as defined in Section 4043 of ERISA or the regulations
issued thereunder with respect to a Plan (other than an event for which the
30-day notice period is waived); (ii) the existence with respect to any Plan of
an “accumulated funding deficiency” (as defined in Section 412 of the Code
or Section 302 of ERISA), whether or not waived; (iii) the filing pursuant
to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (iv) the incurrence by any member of the Consolidated Group or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (vi) the incurrence by any member of the Consolidated 


 


7

















 


Group or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by
any member of the Consolidated Group or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from any member of the Consolidated Group
or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal
Liability or a determination that a Multiemployer Plan is, or is expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA.


 


“Euros” and the sign “€” shall mean
lawful money of the European Union.


 


“Eurodollar” when used in reference to
any Loan or Borrowing, refers to whether such Loan, or the Loans comprising
such Borrowing, bears interest at a rate determined by reference to the
Adjusted LIBO Rate.


 


“Eurodollar Reserve Percentage” shall
mean the aggregate of the maximum reserve percentages (including, without
limitation, any emergency, supplemental, special or other marginal reserves)
expressed as a decimal (rounded upwards to the next 1/100th of 1%)
in effect on any day to which the Administrative Agent is subject with respect
to the Adjusted LIBO Rate pursuant to regulations issued by the Board of
Governors of the Federal Reserve System (or any Governmental Authority
succeeding to any of its principal functions) with respect to eurocurrency
funding (currently referred to as “eurocurrency liabilities” under Regulation
D).  Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D.  The Eurodollar Reserve Percentage shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.


 


“Event of Default” shall have the
meaning provided in Article 8.


 


“Excluded Taxes” shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made
by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction 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, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which any Lender is located and (c) in the
case of a Foreign Lender, any withholding tax that (i) is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement, (ii) is imposed on amounts payable to such Foreign Lender at
any time that such Foreign Lender designates a new lending office, other than
taxes that have accrued prior to the designation of such lending office that
are otherwise not Excluded Taxes, and (iii) is attributable to such Foreign
Lender’s failure to comply with Section 2.20(e).


 


“Executive Summary” shall mean the
Confidential Executive Summary dated May 2004 relating to the
Consolidated Group and the transactions contemplated by this Agreement and the
other Loan Documents.


 


8

















 


“Existing Lenders” shall mean Bank of
America, N.A., The Bank of Nova Scotia, Comerica Bank, SunTrust Bank, Allfirst
Bank, Firstar Bank, National Association, CIBC Inc. and any other lender under
the Credit Agreement dated June 25, 2002 by and among Borrower, Watson
Wyatt & Company Holdings and certain of its domestic subsidiaries, as
guarantors, the banks party thereto, the Bank of Nova Scotia and Comerica Bank,
as co-syndication agents, SunTrust Bank, as documentation agent and Bank of
America, N.A., as agent.


 


“Federal Funds Rate” shall mean, for
any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th
of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers, as published by the Federal Reserve Bank of New York on
the next succeeding Business Day or if such rate is not so published for any
Business Day, the Federal Funds Rate for such day shall be the average rounded
upwards, if necessary, to the next 1/100th of 1% of the quotations for such day
on such transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by the Administrative Agent.


 


“Fee Letter” shall mean that certain
fee letter, dated as of May 7, 2004, executed by SunTrust Robinson Humphrey, a division
of SunTrust Capital Markets, Inc., and SunTrust Bank and accepted by Borrower.


 


“Fiscal Quarter” shall mean any fiscal
quarter of the Consolidated Group.


 


“Fiscal Year” shall mean any fiscal
year of the Consolidated Group.


 


“Fixed Charge Coverage Ratio” shall
mean, as of any date, the ratio of (a) Consolidated EBITR to (b) the sum of (i)
Consolidated Interest Expense plus (ii) Consolidated Lease Expense, in each case
measured for the four consecutive Fiscal Quarters ending on or immediately
prior to such date.


 


“Foreign Currency Payment Accounts”
shall mean those bank accounts specified on Schedule 1.1. for receipt of
payments in Available Foreign Currencies, both from the Lenders in accordance
with Section 2.5 and the Borrower in accordance with Section 2.21,
or such other bank accounts as may hereafter be specified by the Administrative
Agent in writing to the Borrower and the Lenders as being the applicable bank accounts
for receipt of payments in such currencies.


 


“Foreign Currency Sublimit” shall mean
the Dollar Equivalent of $15,000,000, as such amount may be reduced from time
to time pursuant to the terms of this Agreement.


 


“Foreign Lender”  shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.


 


“Foreign Subsidiary” shall mean any
Subsidiary that is organized under the laws of a jurisdiction other than one of
the fifty states of the United States or the District of Columbia.


 


9

















 


“GAAP” shall mean generally accepted
accounting principles in the United States applied on a consistent basis and
subject to the terms of Section 1.3.


 


“Governmental Authority” shall mean
the government of the United States of America, any other nation or 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.


 


“Guarantee” of or by any Person (the “guarantor”)
shall mean any obligation, contingent or otherwise, of the guarantor
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly and including any obligation, direct or
indirect, of the guarantor (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or other obligation or to
purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (ii) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (iii) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor so
as to enable the primary obligor to pay such Indebtedness or other obligation
or (iv) as an account party in respect of any letter of credit or letter of
guaranty issued in support of such Indebtedness or obligation; provided,
that the term “Guarantee” shall not include endorsements for collection or
deposits in the ordinary course of business. 
The amount of any Guarantee shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which
Guarantee is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.  The term “Guarantee” used as a verb has a
corresponding meaning.


 


“Hazardous Materials” shall mean 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.


 


“Hedging Obligations” of any Person
shall mean any and all obligations of such Person, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or acquired
under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy
backs, reversals, terminations or assignments of any Hedging Transactions and
(iii) any and all renewals, extensions and modifications of any Hedging
Transactions and any and all substitutions for any Hedging Transactions.


 


“Hedging Transaction” of any Person
shall mean any transaction (including an agreement with respect thereto) now
existing or hereafter entered into by such Person that is a rate swap, basis
swap, forward rate transaction, commodity swap, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collateral
transaction, forward transaction,


 


10

















 


currency swap
transaction, cross-currency rate swap transaction, currency option or any other
similar transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to one or more interest
rates, foreign currencies, commodity prices, equity prices or other financial
measures.


 


“Hong Kong Dollars” and the sign “hk$”
shall mean lawful money of the Hong Kong Special Administrative Region.


 


“Indebtedness” of any Person shall
mean, without duplication (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in
respect of the deferred purchase price of property or services (other than
trade payables incurred in the ordinary course of business), (iv) all
obligations of such Person under any conditional sale or other title retention
agreement(s) relating to property acquired by such Person, (v) all Capital
Lease Obligations of such Person, (vi) all obligations, contingent or
otherwise, of such Person in respect of letters of credit, acceptances or
similar extensions of credit, (vii) all Guarantees of such Person of the
type of Indebtedness described in clauses (i) through (vi) above, (viii) all
Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all Hedging Obligations.  The
Indebtedness of any Person shall include the Indebtedness of any partnership or
joint venture in which such Person is a general partner or a joint venturer,
but only to the extent that there is direct or indirect recourse to such Person
(as a guarantor, partner or otherwise) for payment thereof.


 


“Indemnified Taxes” shall mean Taxes
other than Excluded Taxes.


 


“Interest Coverage Ratio” shall mean,
as of any date, the ratio of (i) Consolidated EBITDA for the four consecutive
Fiscal Quarters ending on or immediately prior to such date to (ii)
Consolidated Interest Expense for the four consecutive Fiscal Quarters ending
on or immediately prior to such date.


 


“Interest Period” shall mean with respect to (i) any Swingline
Borrowing, such period as the Swingline Lender and the Borrower shall mutually
agree and (ii) any Eurodollar Borrowing, a period of one, two, three or six
months; provided, that:


 


(i)            the initial Interest Period for such
Borrowing shall commence on the date of such Borrowing (including the date of
any conversion from a Borrowing of another Type), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;


 


(ii)           if any Interest Period would otherwise end
on a day other than a Business Day, such Interest Period shall be extended to
the next succeeding Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period would end on the next
preceding Business Day;


 


11

















 


(iii)          any Interest Period which 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 such calendar month; and


 


(iv)          no Interest Period may extend beyond the
Revolving Commitment Termination Date.


 


“Issuing Bank” shall mean SunTrust
Bank or any other Lender, each in its capacity as an issuer of Letters of
Credit pursuant to Section 2.22.


 


“Japanese Yen” and the sign “¥” shall
mean lawful money of Japan.


 


“LC Commitment” shall mean that
portion of the Aggregate Revolving Commitment Amount that may be used by the
Borrower for the issuance of Letters of Credit in an aggregate face amount not
to exceed $15,000,000.


 


“LC Disbursement” shall mean a payment
made by the Issuing Bank pursuant to a Letter of Credit.


 


“LC Documents” shall mean the Letters
of Credit and all applications, agreements and instruments relating to the
Letters of Credit.


 


“LC Exposure” shall mean, at any time,
the sum of (i) the aggregate undrawn amount of all outstanding Letters of
Credit at such time, plus (ii) the aggregate amount of all
LC Disbursements that have not been reimbursed by or on behalf of the Borrower
at such time.  The LC Exposure of any
Lender shall be its Pro Rata Share of the total LC Exposure at such time.


 


“Lead Arranger” shall mean SunTrust
Robinson Humphrey, Inc., a division of SunTrust Capital Markets, Inc.


 


“Lender Joinder” shall have the
meaning set forth in Section 2.23.


 


“Lenders” shall have the meaning
assigned to such term in the opening paragraph of this Agreement and shall
include, where appropriate, the Swingline Lender and each Additional Lender
that joins this Agreement pursuant to Section 2.23.


 


“Letter of Credit” shall mean any
stand-by letter of credit issued pursuant to Section 2.22 by the
Issuing Bank for the account of the Borrower pursuant to the LC Commitment.


 


“Leverage Ratio” shall mean, as of any
date, the ratio of (i) Total Debt as of such date to (ii) Consolidated EBITDA
for the four consecutive quarters ending on or immediately prior to such date.


 


“LIBOR” shall mean, for any applicable
Interest Period with respect to any Eurodollar Loan, the British Bankers’
Association Interest Settlement Rate per annum for deposits in


 


12

















 


Dollars or
applicable Available Foreign Currency for a period equal to such Interest
Period appearing on the display designated as Page 3750 on the Dow Jones
Markets Service (or such other page on that service or such other service
designated by the British Bankers’ Association for the display of such
Association’s Interest Settlement Rates for Dollar or the applicable Available
Foreign Currency deposits) as of 11:00 a.m. (London, England time) on the
day that is two Business Days prior to the first day of the Interest Period or
if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per
annum at which deposits in Dollars or the applicable Available Foreign Currency
are offered to the Administrative Agent two (2) Business Days preceding the
first day of such Interest Period by leading banks in the London interbank
market as of 10:00 a.m. (Atlanta, Georgia time) for delivery on the first day
of such Interest Period, for the number of days comprised therein and in an
amount comparable to the amount of the Eurodollar Loan of the Administrative
Agent.


 


“Lien” shall mean any mortgage,
pledge, security interest, lien (statutory or otherwise), charge, encumbrance,
hypothecation, assignment, deposit arrangement, or other arrangement having the
practical effect of the foregoing or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any
capital lease having the same economic effect as any of the foregoing).


 


“Loan Documents” shall mean,
collectively, this Agreement, the Notes (if any), the LC Documents, the Parent
Guaranty Agreement, the Subsidiary Guaranty Agreement, the Pledge Agreements,
all Notices of Borrowing, all Notices of Conversion/Continuation, all
Compliance Certificates and any and all other instruments, agreements,
documents and writings executed in connection with any of the foregoing.


 


“Loan Parties” shall mean the
Borrower, the Parent Guarantor and the Subsidiary Loan Parties.


 


“Loans” shall mean all Revolving Loans
and Swingline Loans in the aggregate or individually, as the context shall
require.


 


“Margined Receivables from Clients”
shall mean, as of any date, for the Consolidated Group determined on a
consolidated basis in accordance with GAAP, the sum of (i) 100% of billed
receivables from clients, net of standard allowances for doubtful accounts plus (ii) 75% of unbilled receivables from
clients, net of standard allowances for doubtful accounts.


 


“Material Adverse Effect” shall mean,
with respect to any event, act, condition or occurrence of whatever nature
(including any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singularly or in conjunction
with any other event or events, act or acts, condition or conditions,
occurrence or occurrences whether or


 


13

















 


not related, a
material adverse change in, or a material adverse effect on, (i) the
business, results of operations, financial condition, assets, liabilities or
prospects of the Consolidated Group taken as a whole, (ii) the ability of
the Loan Parties to perform any material 
obligations under the Loan Documents, (iii) the rights and remedies of
the Administrative Agent, the Issuing Bank, Swingline Lender, and the Lenders
under any of the Loan Documents or (iv) the legality, validity or
enforceability of any of the Loan Documents.


 


“Material Indebtedness” shall mean
Indebtedness (other than the Loans and Letters of Credit) and Hedging
Obligations of any member of the Consolidated Group, individually or in an
aggregate principal amount exceeding $5,000,000.  For purposes of determining the amount of attributed Indebtedness
from Hedging Obligations, the “principal amount” of any Hedging Obligations at
any time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.


 


“Material Subsidiary”  shall mean a Subsidiary of the Parent (i)
the accounts receivable of which comprise two percent (2%) or more of the
consolidated accounts receivable of the Consolidated Group or (ii) the assets
of which comprise two percent (2%) or more of the consolidated assets of the
Consolidated Group.


 


“Minimum Asset Coverage Ratio” shall
mean at any time the ratio of Margined Receivables from Clients to Total Debt
at such time.


 


“Moody’s” shall mean Moody’s Investors
Service, Inc.


 


“Multiemployer Plan” shall have the
meaning set forth in Section 4001(a)(3) of ERISA.


 


“Net Mark-to-Market Exposure” of any
Person shall mean, as of any date of determination with respect to any Hedging
Obligation, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from such Hedging Obligation.  “Unrealized losses” shall mean the fair
market value of the cost to such Person of replacing the Hedging Transaction
giving rise to such Hedging Obligation as of the date of determination
(assuming the Hedging Transaction were to be terminated as of that date), and
“unrealized profits” means the fair market value of the gain to such Person of
replacing such Hedging Transaction as of the date of determination (assuming
such Hedging Transaction were to be terminated as of that date).


 


“New Zealand Dollars” and the sign
“nz$” shall mean lawful money of New Zealand.


 


“Notes” shall mean, collectively, the
Revolving Credit Notes and the Swingline Note.


 


“Notices of Borrowing” shall mean,
collectively, the Notices of Revolving Borrowing, and the Notices of Swingline
Borrowing.


 


“Notice of Conversion/Continuation”  shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.8(b).


 


“Notice of Revolving Borrowing” shall
have the meaning as set forth in Section 2.3.


 


14

















 


“Notice of Swingline Borrowing”  shall have the meaning as set forth in Section 2.4.


 


“Obligations” shall mean all amounts
owing by the Borrower to the Administrative Agent, the Issuing Bank or any
Lender (including the Swingline Lender) pursuant to or in connection with this
Agreement or any other Loan Document, including without limitation, all
principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or
like proceeding relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding), all
reimbursement obligations, fees, expenses, indemnification and reimbursement
payments, costs and expenses (including all fees and expenses of counsel to the
Administrative Agent, the Issuing Bank and any Lender (including the Swingline
Lender) incurred pursuant to this Agreement or any other Loan Document),
whether direct or indirect, absolute or contingent, liquidated or unliquidated,
now existing or hereafter arising hereunder or thereunder, and all Hedging
Obligations owed to the Administrative Agent, any Lender or any of their
Affiliates incurred in order to limit interest rate or fee fluctuation with
respect to the Loans and Letters of Credit, and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof.


 


“Off-Balance Sheet Liabilities” of any
Person shall mean (i) any repurchase obligation or liability of such Person
with respect to accounts or notes receivable sold by such Person, (ii) any
liability of such Person under any sale and leaseback transactions that do not
create a liability on the balance sheet of such Person, (iii) any Synthetic Lease
Obligation or (iv) any obligation arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the balance sheet of such Person.


 


“OSHA” shall mean the Occupational
Safety and Health Act of 1970, as amended from time to time, and any successor
statute.


 


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


 


“Parent Guarantor” shall mean Watson
Wyatt & Company Holdings, a Delaware corporation.


 


“Parent Guaranty Agreement” shall mean
the Parent Guaranty Agreement, dated as of the date hereof and substantially in
the form of Exhibit D-1, made by the Parent Guarantor in favor of the
Administrative Agent for the benefit of the Lenders.


 


“Participant” shall have the meaning
set forth in Section 10.4(d).


 


“Payment Office” shall mean the office
of the Administrative Agent located at 303 Peachtree Street, N.E., Atlanta,
Georgia 30308, or such other location as to which the Administrative Agent
shall have given written notice to the Borrower and the other Lenders.


 


15

















 


“PBGC”  shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA, and any successor entity performing similar functions.


 


“Permitted CSAP Loan” shall mean a
loan extended under the Canadian Loan Program to one of the Borrower’s Canadian
employees for which a Separation Allowance Account is maintained having a
balance not in excess of 90% of the dollar amount credited from time to time to
such account.


 


“Permitted Encumbrances” shall mean:


 


(i)             Liens imposed by law for taxes not yet due
or which are being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance with
GAAP;


 


(ii)            statutory Liens of landlords, carriers,
warehousemen, mechanics, materialmen and similar Liens arising by operation of
law in the ordinary course of business for amounts not yet due or which are
being contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;


 


(iii)           pledges and deposits made in the ordinary
course of business in compliance with workers’ compensation, unemployment
insurance and other social security laws or regulations;


 


(iv)           liens and deposits to secure the performance
of bids, trade contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;


 


(v)            judgment and attachment liens not giving
rise to an Event of Default or Liens created by or existing from any litigation
or legal proceeding that are currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP;


 


(vi)           easements, zoning restrictions,
rights-of-way and similar encumbrances on real property imposed by law or
arising in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the affected
property or materially interfere with the ordinary conduct of business of the
Consolidated Group taken as a whole;


 


(vii)          any interest or title of a lessor under, and
Liens arising from UCC financing statements (or equivalent filings,
registration or agreements in foreign jurisdictions) relating to leases that
are not Capital Lease Obligations;


 


(viii)         normal and customary rights of setoff upon
deposits of cash in favor of banks or other depository institutions;


 


16

















 


(ix)           Liens of a collection bank arising under
Section 4-210 of the UCC on items in the course of collection; and


 


(x)            Liens deemed to exist in connection with
investments in repurchase agreements that constitute Permitted Investments;


 


provided, that the term “Permitted
Encumbrances” shall not include any Lien securing Indebtedness.


 


“Permitted Investments” shall mean:


 


(i)            direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the
United States (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States), in each case
maturing within one year from the date of acquisition thereof;


 


(ii)           commercial paper having the highest rating,
at the time of acquisition thereof, of S&P or Moody’s and in either case
maturing within six months  from
the date of acquisition thereof;


 


(iii)          certificates of deposit, bankers’ acceptances
and time deposits maturing within 180 days of the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States or any state thereof which has a combined
capital and surplus and undivided profits of not less than $500,000,000;


 


(iv)          fully collateralized repurchase agreements
with a term of not more than 30 days for securities described in clause (i)
above and entered into with a financial institution satisfying the criteria
described in clause (iii) above;


 


(v)           mutual funds investing solely in any one or
more of the Permitted Investments described in clauses (i) through (iv) above;


 


(vi)          investments consisting of stock, obligations,
securities or other property received in settlement of accounts receivable
(created in the ordinary course of business) from bankrupt obligors;


 


(vii)         investments in Watson Wyatt LLP in an
aggregate amount not to exceed $10,000,000;


 


(viii)        investments in Watson Wyatt & Company
Holdings (Europe) Limited in an aggregate amount not to exceed $10,000,000;


 


17

















 


(ix)           Permitted CSAP Loans in an aggregate amount
not to exceed $3,500,000; and


 


(x)            investments in Professional Consultants
Insurance Company, Inc. or any other captive insurance company that securies
professional liability insurance for the members of the Consolidated Group in
an aggregate amount not to exceed $10,000,000 at any one time outstanding.


 


“Person” shall mean any individual,
partnership, firm, corporation, association, joint venture, limited liability
company, trust or other entity, or any Governmental Authority.


 


“Plan” shall mean any employee pension
benefit plan (other than a Multiemployer Plan) subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such
plan were terminated, would under Section 4069 of ERISA be deemed to be)
an “employer” as defined in Section 3(5) of ERISA.


 


“Pledge Agreements” shall mean the
Pledge Agreements, dated as of the date hereof and substantially in the form of
Exhibit E, made by the Parent Guarantor and Borrower in favor of the
Administrative Agent for the benefit of the Lenders pledging the interests of
the Parent Guarantor and the Borrower in all Material Subsidiaries as
collateral security for the Obligations, as the same may from time to time be
amended.


 


“Pro Rata Share” shall mean (i) with
respect to any Commitment of any Lender at any time, a percentage, the
numerator of which shall be such Lender’s Commitment (or if such Commitments
have been terminated or expired or the Loans have been declared to be due and
payable, such Lender’s Revolving Credit Exposure), and the denominator of which
shall be the sum of such Commitments of all Lenders (or if such Commitments
have been terminated or expired or the Loans have been declared to be due and
payable, all Revolving Credit Exposure of all Lenders) and (ii) with respect to
all Commitments of any Lender at any time, the numerator of which shall be the
sum of such Lender’s Revolving Commitment (or if such Revolving Commitments
have been terminated or expired or the Loans have been declared to be due and
payable, such Lender’s Revolving Credit Exposure) and the denominator of which
shall be the sum of all Lenders’ Revolving Commitments (or if such Revolving
Commitments have been terminated or expired or the Loans have been declared to
be due and payable, all Revolving Credit Exposure of all Lenders funded under
such Commitments).


 


“Regulation D” shall mean
Regulation D of the Board of Governors of the Federal Reserve System, as
the same may be in effect from time to time, and any successor regulations.


 


“Related Parties” shall mean, with
respect to any specified Person, such Person’s Affiliates and the respective
directors, officers, employees, agents and advisors of such Person and such
Person’s Affiliates.


 


“Release” shall mean any release,
spill, emission, leaking, dumping, injection, pouring, deposit, disposal,
discharge, dispersal, leaching or migration into the environment (including


 


18

















 


ambient air,
surface water, groundwater, land surface or subsurface strata) or within any
building, structure, facility or fixture.


 


“Required Lenders” shall mean, at any
time, Lenders holding more than 50% of the aggregate outstanding Revolving
Commitments at such time or if the Lenders have no Commitments outstanding,
then Lenders holding more than 50% of the Revolving Credit Exposure.


 


“Requirement of Law” for any Person
shall mean the articles or certificate of incorporation, bylaws, partnership
certificate and agreement, or limited liability company certificate of
organization and agreement, as the case may be, and other organizational and
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.


 


“Responsible Officer” shall mean any
of the president, the chief executive officer, the chief operating officer, the
chief financial officer, the treasurer or a vice president of the Borrower or
such other representative of the Borrower as may be designated in writing by
any one of the foregoing with the consent of the Administrative Agent; and,
with respect to the financial covenants only, the chief financial officer or
the treasurer of the Borrower.


 


“Restricted Payment” shall have the
meaning set forth in Section 7.5.


 


“Revolving Commitment” shall mean,
with respect to each Lender, the obligation of such Lender to make Revolving
Loans to the Borrower and to participate in Letters of Credit and Swingline
Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on Annex I, as such annex may be amended pursuant
to Section 2.23, or in the case of a Person becoming a Lender after
the Closing Date through an assignment of an existing Revolving Commitment, the
amount of the assigned “Revolving Commitment” as provided in the Assignment and
Acceptance executed by such Person as an assignee, as the same may be increased
or deceased pursuant to terms hereof.


 


“Revolving Commitment Termination Date”
shall mean the earliest of (i) June 30, 2009, (ii) the date on which the Revolving
Commitments are terminated pursuant to Section 2.9 and (iii) the
date on which all amounts outstanding under this Agreement have been declared
or have automatically become due and payable (whether by acceleration or
otherwise).


 


“Revolving Credit Exposure” shall
mean, with respect to any Lender at any time, the sum of the outstanding
principal amount of such Lender’s Revolving Loans, LC Exposure and Swingline
Exposure.


 


“Revolving Credit Note” shall mean a
promissory note of the Borrower payable to the order of a requesting Lender in
the principal amount of such Lender’s Revolving Commitment, in substantially
the form of Exhibit A.


 


19

















 


“Revolving Loan” shall mean a loan
made by a Lender (other than the Swingline Lender) to the Borrower under its
Revolving Commitment, which may either be a Base Rate Loan or a Eurodollar
Loan.


 


“Separation Allowance Account” shall
mean the account established for the Borrower’s qualified Canadian employees to
which, from time to time, the Borrower may credit dollar amounts allocated to
such employee based on such employee’s share in the CSAP.  For the avoidance of doubt, no such account
shall be funded with actual dollars, but the dollar amount credited thereto
shall be reflected as a liability on the balance sheet of the Borrower.


 


“S&P” shall mean Standard &
Poor’s, a Division of the McGraw-Hill Companies.


 


“Subsidiary” shall mean, with respect
to any Person (the “parent”), any corporation, partnership, joint
venture, limited liability company, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s
consolidated financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other corporation,
partnership, joint venture, limited liability company, association or other
entity (i) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power, or in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (ii) that is, as of such date,
otherwise controlled, by the parent or one or more subsidiaries of the parent
or by the parent and one or more subsidiaries of the parent.  Unless otherwise indicated, all references
to “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.


 


“Subsidiary Guaranty Agreement” shall
mean the Subsidiary Guaranty Agreement, dated as of the date hereof and
substantially in the form of Exhibit D-2, made by certain
Subsidiaries of the Borrower in favor of the Administrative Agent for the
benefit of the Lenders.


 


“Subsidiary Guaranty Supplement” shall
mean each supplement substantially in the form of Annex I to the
Subsidiary Guaranty Agreement executed and delivered by a Subsidiary of the Borrower
pursuant to Section 5.10.


 


“Subsidiary Loan Party” shall mean any
Subsidiary that executes or becomes a party to the Subsidiary Guaranty
Agreement.


 


“Swingline Commitment” shall mean the
commitment of the Swingline Lender to make Swingline Loans in an aggregate
principal amount at any time outstanding not to exceed  $10,000,000.


 


“Swingline Exposure” shall mean, with
respect to each Lender, the principal amount of the Swingline Loans in which
such Lender is legally obligated either to make a Base Rate Loan or to purchase
a participation in accordance with Section 2.4, which shall equal
such Lender’s Pro Rata Share of all outstanding Swingline Loans.


 


“Swingline Lender” shall mean SunTrust
Bank, or any other Lender that may agree to make Swingline Loans hereunder.


 


20

















 


“Swingline Loan” shall mean a loan
made to the Borrower by the Swingline Lender under the Swingline Commitment.


 


“Swingline Note” shall mean the
promissory note of the Borrower payable to the order of the Swingline Lender in
the principal amount of the Swingline Commitment, substantially the form of Exhibit
B.


 


“Swingline Rate” shall mean, for any
Interest Period, the rate as offered by the Agent and accepted by the
Borrower.  The Borrower is under no
obligation to accept this rate and the Agent is under no obligation to provide
it.


 


“Synthetic Lease” shall mean a lease
transaction under which the parties intend that (i) the lease will be treated
as an “operating lease” by the lessee pursuant to Statement of Financial
Accounting Standards No. 13, as amended and (ii) the lessee will be entitled to
various tax and other benefits ordinarily available to owners (as opposed to
lessees) of like property.


 


“Synthetic Lease Obligations” shall
mean, with respect to any Person, the sum of (i) all remaining rental
obligations of such Person as lessee under Synthetic Leases which are
attributable to principal and, without duplication, (ii) all rental and
purchase price payment obligations of such Person under such Synthetic Leases
assuming such Person exercises the option to purchase the lease property at the
end of the lease term.


 


“Taxes” shall mean any and all present
or future taxes, levies, imposts, duties, deductions, charges or withholdings
imposed by any Governmental Authority.


 


“Total Debt” shall mean, as of any date of
determination, all Indebtedness of
the Consolidated Group measured on a consolidated basis as of such date, but
excluding Indebtedness of the
type describe in subsection (xi) of the definition of Indebtedness.


 


“Type”, when used in reference to a
Loan or Borrowing, refers to whether the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is determined by reference to the Adjusted
LIBO Rate or the Base Rate.


 


“Voting Stock” shall mean, with
respect to any Person, Capital Stock issued by such Person the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of such
contingency.


 


“Withdrawal Liability” shall mean
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.


 


Section 1.2.           Classifications of Loans and Borrowings.  For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g. a “Revolving Loan”) or by Type (e.g.
a “Eurodollar Loan” or “Base Rate Loan”) or by Class and Type (e.g. “Revolving
Eurodollar Loan”).  Borrowings also may
be classified and referred to by Class (e.g. “Revolving


 


21

















 


Borrowing”) or
by Type (e.g. “Eurodollar Borrowing”) or by Class and Type (e.g. “ Revolving
Eurodollar Borrowing”).


 


Section 1.3.           Accounting Terms and Determination.  Unless otherwise defined or specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with GAAP as in
effect from time to time, applied on a basis consistent with the most recent
audited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a);
provided, that if the Borrower notifies the Administrative Agent that
the Borrower wishes to amend any covenant in Article 6 to eliminate the
effect of any change in GAAP on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to
amend Article 6 for such purpose), then the Borrower’s compliance with
such covenant shall be determined on the basis of GAAP in effect immediately
before the relevant change in GAAP became effective, until either such notice
is withdrawn or such covenant is amended in a manner satisfactory to the
Borrower and the Required Lenders.


 


Section 1.4.           Terms Generally.  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”.  In the computation of periods
of time from a specified date to a later specified date, the word “from” means
“from and including” and the word “to” means “to but excluding”.  Unless the context requires otherwise (i)
any definition of or reference to any agreement, instrument or other document
herein shall be construed as referring to such agreement, instrument or other
document as it was originally executed or as it may from time to time be
amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and permitted assigns, (iii) the words “hereof”,
“herein” and “hereunder” and words of similar import shall be construed to
refer to this Agreement as a whole and not to any particular provision hereof,
(iv) all references to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles, Sections, Exhibits and Schedules to this
Agreement and (v) all references to a specific time shall be construed to refer
to the time in the city and state of the Administrative Agent’s principal
office, unless otherwise indicated.


 


ARTICLE 2



AMOUNT AND TERMS OF THE COMMITMENTS


 


Section 2.1.           General Description of Facilities.  Subject to and upon the terms and conditions
herein set forth, (i) the Lenders hereby establish in favor of the
Borrower a revolving credit facility pursuant to which each Lender severally
agrees (to the extent of such Lender’s Revolving Commitment) to make Revolving
Loans to the Borrower in accordance with Section 2.2,


 


22

















 


(ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.22,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with Section 2.4,
and (iv) each Lender agrees to purchase a participation interest in the Letters
of Credit and the Swingline Loans pursuant to the terms and conditions hereof; provided,
that in no event shall the aggregate principal amount of all outstanding
Revolving Loans, Swingline Loans and outstanding LC Exposure exceed at any time
the Aggregate Revolving Commitment Amount from time to time in effect.


 


Section 2.2.           Revolving Loans.  Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans, ratably in
proportion to its Pro Rata Share, to the Borrower, from time to time during the  Availability Period, in an aggregate
principal amount outstanding at any time (determined in the case of any
Revolving Loan denominated in an Available Foreign Currency by reference to the
Dollar Equivalent thereof on such Business Day) that will not result in (a)
such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving
Commitment or (b) the sum of the aggregate Revolving Credit Exposures of all
Lenders exceeding the Aggregate Revolving Commitment Amount.  During the Availability Period, the Borrower
shall be entitled to borrow, prepay and reborrow Revolving Loans in accordance
with the terms and conditions of this Agreement; provided, that the
Borrower may not borrow or reborrow should there exist a Default or Event of
Default.  Funding of any Revolving Loans
shall be in any combination of Dollars or an Available Foreign Currency as
specified by the Borrower as set forth in Section 2.3; provided
that the Dollar Equivalent amount of outstanding Revolving Loans funded in an
Available Foreign Currency determined from time to time by the Administrative
Agent in its discretion shall not at any time exceed the Foreign Currency
Sublimit then in effect.


 


Section 2.3.           Procedure for Revolving Borrowings.  The Borrower shall give the Administrative
Agent written notice (or telephonic notice promptly confirmed in writing) of
each Revolving Borrowing substantially in the form of Exhibit 2.3 (a “Notice
of Revolving Borrowing”) (x) prior to 11:00 a.m. (Atlanta, Georgia time)
one (1) Business Day prior to the requested date of each Base Rate Borrowing,
(y) prior to 11:00 a.m. (Atlanta, Georgia time) three (3) Business Days prior
to the requested date of each Eurodollar Borrowing denominated in Dollars and
(z) prior to 11:00 a.m. four (4) Business Days prior to the requested date of
each Borrowing denominated in an Available Foreign Currency.  Each Notice of Revolving Borrowing shall be
irrevocable and  shall
specify:  (i) the aggregate principal
amount of such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing,
and (iv) in the case of a Eurodollar Borrowing, the requested Available Foreign
Currency (if such Borrowing is not denominated in Dollars) and the duration of
the initial Interest Period applicable thereto (subject to the provisions of
the definition of Interest Period). 
Each Revolving Borrowing shall consist entirely of Base Rate Loans or
Eurodollar Loans, as the Borrower may request. 
The aggregate principal amount of each Eurodollar Borrowing shall be not
less than $1,000,000 (or, if applicable, the Dollar Equivalent thereof in the
Available Foreign Currency in which such Eurodollar Borrowing is denominated)
or a larger multiple of $100,000 (or, if applicable, the Dollar Equivalent
thereof in the Available Foreign Currency in which such Eurodollar Borrowing is
denominated), and the aggregate principal amount of each Base Rate Borrowing
shall not be less than $500,000 or a


 


23

















 


larger
multiple of $100,000; provided, that Base Rate Loans made pursuant to Section 2.4
or Section 2.22(d) may be made in lesser amounts as provided
therein.  At no time shall the total
number of Eurodollar Borrowings outstanding at any time exceed four.  At no time shall the total number of Borrowings outstanding at
any time denominated in an Available Foreign Currency exceed four.  Promptly following the receipt of a Notice
of Revolving Borrowing in accordance herewith, the Administrative Agent shall
advise each Lender of the details thereof and the amount of such Lender’s
Revolving Loan to be made as part of the requested Revolving Borrowing.


 


Section 2.4.           Swingline Commitment.


 


(a)           Subject
to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to the Borrower, from time to time during the Availability
Period, in an aggregate principal amount outstanding at any time not to exceed
the lesser of (i) the Swingline Commitment then in effect and (ii) the
difference between the Aggregate Revolving Commitment Amount and the aggregate
Revolving Credit Exposures of all Lenders; provided, that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding
Swingline Loan.  The Borrower shall be
entitled to borrow, repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.


 


(b)           The
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing substantially
in the form of Exhibit 2.4 attached hereto (“Notice of Swingline Borrowing”)
prior to 11:00 a.m. (Atlanta, Georgia time) on the requested date of each
Swingline Borrowing.  Each Notice of
Swingline Borrowing shall be irrevocable and shall specify:  (i) the principal amount of such Swingline
Loan, (ii) the date of such Swingline Loan (which shall be a Business Day) and
(iii) the account of the Borrower to which the proceeds of such Swingline Loan
should be credited.  The Administrative
Agent will promptly advise the Swingline Lender of each Notice of Swingline
Borrowing.  Each Swingline Loan shall
accrue interest at the Base Rate or any other interest rate as agreed between
the Borrower and the Swingline Lender and shall have an Interest Period
(subject to the definition thereof) as agreed between the Borrower and the
Swingline Lender.  The aggregate
principal amount of each Swingline Loan shall be not less than  $100,000 or a larger multiple of $50,000,
or such other minimum amounts agreed to by the Swingline Lender and the
Borrower.  The Swingline Lender will
make the proceeds of each Swingline Loan available to the Borrower in Dollars
in immediately available funds at the account specified by the Borrower in the
applicable Notice of Swingline Borrowing not later than 1:00 p.m. (Atlanta,
Georgia time) on the requested date of such Swingline Loan.  For the avoidance of doubt, the Swingline
Lender shall make the proceeds of each Swingline Loan available to Borrower
exclusively in Dollars and shall have no obligation to make the proceeds of any
Swingline Loan available in any Available Foreign Currency.


 


(c)           The
Swingline Lender, at any time and from time to time in its sole discretion,
may, on behalf of the Borrower (which hereby irrevocably authorizes and directs
the Swingline Lender to act on its behalf), give a Notice of Revolving
Borrowing to the Administrative Agent requesting the Lenders (including the Swingline
Lender) to make Base


 


24

















 


Rate Loans in
an amount equal to the unpaid principal amount of any Swingline Loan.  Each Lender will make the proceeds of its
Base Rate Loan included in such Borrowing available to the Administrative Agent
for the account of the Swingline Lender in accordance with Section 2.5,
which will be used solely for the repayment of such Swingline Loan.


 


(d)           If
for any reason a Base Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in accordance with the
foregoing provisions, then each Lender (other than the Swingline Lender) shall
purchase an undivided participating interest in such Swingline Loan in an
amount equal to its Pro Rata Share thereof on the date that such Base Rate
Borrowing should have occurred.  On the
date of such required purchase, each Lender shall promptly transfer, in
immediately available funds, the amount of its participating interest to the
Administrative Agent for the account of the Swingline Lender.  If such Swingline Loan bears interest at a
rate other than the Base Rate, such Swingline Loan shall automatically become a
Base Rate Loan on the effective date of any such participation and interest
shall become payable on demand.


 


(e)           Each
Lender’s obligation to make a Base Rate Loan pursuant to Section 2.4(c) or
to purchase the participating interests pursuant to Section 2.4(d) shall
be absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have or claim against
the Swingline Lender, the Borrower or any other Person for any reason
whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender’s Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition 
which has had or could reasonably be expected to have a Material Adverse
Effect, (iv) any breach of this Agreement or any other Loan Document by
the Borrower, the Administrative Agent or any Lender or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.  If such amount is not in
fact made available to the Swingline Lender by any Lender, the Swingline Lender
shall be entitled to recover such amount on demand from such Lender, together
with accrued interest thereon for each day from the date of demand thereof (i)
at the Federal Funds Rate until the second Business Day after such demand and
(ii) at the Base Rate at all times thereafter. 
Until such time as such Lender makes its required payment, the Swingline
Lender shall be deemed to continue to have outstanding Swingline Loans in the
amount of the unpaid participation for all purposes of the Loan Documents.  In addition, such Lender shall be deemed to
have assigned any and all payments made of principal and interest on its Loans
and any other amounts due to it hereunder, to the Swingline Lender to fund the
amount of such Lender’s participation interest in such Swingline Loans that
such Lender failed to fund pursuant to this Section, until such amount has been
purchased in full.


 


Section 2.5.           Funding of Borrowings.


 


(a)           Each
Lender will make available each Loan to be made by it hereunder on the proposed
date thereof by wire transfer in immediately available funds by 11:00 a.m.
(Atlanta, Georgia time) to the Administrative Agent at the Payment Office;
provided, that the Swingline Loans will be made as set forth in
Section 2.4.   If any Borrowing is
to be denominated in an


 


25

















 


Available
Foreign Currency, not later than 11:00 a.m. each Lender will make available its
Pro Rata Share of such Borrowing, in immediately available funds and in the
Available Foreign Currency so requested by the Borrower at the applicable
Foreign Currency Payment Account for the benefit of the Administrative Agent
and otherwise according to the payment instructions of the Administrative
Agent.  The Administrative Agent will
make such Loans available to the Borrower by promptly crediting the amounts
that it receives, in like funds by the close of business on such proposed date,
to an account maintained by the Borrower with the Administrative Agent or at
the Borrower’s option, by effecting a wire transfer of such amounts to an
account designated by the Borrower to the Administrative Agent.


 


(b)           Unless
the Administrative Agent shall have been notified by any Lender prior to 5:00
p.m. (Atlanta, Georgia time) one (1) Business Day prior to the date of a
Borrowing in which such Lender is to participate 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 amount
available to the Administrative Agent on such date, and the Administrative
Agent, in reliance on such assumption, may make available to the Borrower on
such date a corresponding amount.  If
such corresponding amount is not in fact made available to the Administrative
Agent by such Lender on the date of such Borrowing, the Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender together with interest at the Federal Funds Rate until the second
Business Day after such demand and thereafter at the Base Rate.  If such Lender does not pay such
corresponding amount forthwith upon the Administrative Agent’s demand therefor,
the Administrative Agent shall promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Administrative Agent
together with interest at the rate specified for such Borrowing.  Nothing in this subsection shall be
deemed to relieve any Lender from its obligation to fund its Pro Rata Share of
any Borrowing hereunder or to prejudice any rights which the Borrower may have
against any Lender as a result of any default by such Lender hereunder.


 


(c)           All
Revolving Borrowings shall be made by the Lenders on the basis of their
respective Pro Rata Shares.  No Lender
shall be responsible for any default by any other Lender in its obligations
hereunder, and each Lender shall be obligated to make its Loans provided to be
made by it hereunder, regardless of the failure of any other Lender to make its
Loans hereunder.


 


Section 2.6.           Multi-Currency
Options.


 


(a)           The
Borrower may request Borrowings of Revolving Loans in any Available Foreign
Currency; provided, however, that the aggregate Dollar Equivalent outstanding
amount of Revolving Loans made in Available Foreign Currencies shall not exceed
at any time the Foreign Currency Sublimit. 
Each Lender’s Pro Rata Share of each Revolving Loan made in an Available
Foreign Currency shall be determined by reference to its Dollar Equivalent on
the date each such Revolving Loan is made. Notwithstanding anything herein to
the contrary, all Base Rate Loans and all Swingline Loans shall be funded only
in Dollars.  Eurodollar Loans may be
funded in either Dollars or in an Available Foreign Currency, in either case,
as requested by the Borrower pursuant to Section 2.3.


 


26

















 


(b)           All
payments of Obligations under this Agreement, the Notes or any other Loan
Document shall be made in Dollars, except for Eurodollar Loans funded in an
Available Foreign Currency, which shall be repaid, including interest thereon,
in the applicable Available Foreign Currency. 
If any payment of any Obligation shall be made in a currency other than
the currency required hereunder, such amount shall be converted into the
currency required hereunder at the current market rate for the purchase of the
currency required hereunder with the currency in which such Obligation was
paid, as quoted by the Administrative Agent in accordance with the methods
customarily used by the Administrative Agent for such purposes as the time of
such determination.  The parties hereto
hereby agree, to the fullest extent that they may effectively do so under
applicable law, that (i) if for the purposes of obtaining any judgment or award
it becomes necessary to convert from any currency other than the currency
required hereunder into the currency required hereunder any amount in
connection with the Obligations, then the conversion shall be made as provided
above on the Business Day before the day on which the judgment or award is
given, (ii) in the event that there is a change in the rate of exchange
prevailing between the Business Day before the day on which the judgment or
award is given and the date of payment, the Borrower will pay to the
Administrative Agent, for the benefit of the Lenders, such additional amounts
(if any) as may be necessary, and the Administrative Agent, on behalf of the
Lenders, will pay to the Borrower such excess amounts (if any) as result from
such change in the rate of exchange, to assure that the amount paid on such
date is the amount in such other currency, which when converted at the rate of
exchange described herein on the date of payment, is the amount then due in the
currency required hereunder, and (iii) any amount due from the Borrower under
this Section 2.6(b) shall be due as a separate debt and shall not
be affected by judgment or award being obtained for any other sum due.  For the avoidance of doubt, the parties
affirm and agree that neither the fixation of the conversion rate of any
Available Foreign Currency against the Euro as a single currency, in accordance
with the Treaty Establishing the European Economic Community, as amended by the
Treaty on the European Union (The Maastricht Treaty), nor the conversion of the
Obligations under this Agreement from any Available Foreign Currency into Euros
will be a reason for early termination or revision of this Agreement or
repayment of any amount due under this Agreement or create any liability of any
party towards any other party for any direct or consequential loss arising from
any of these events.  As of the date
that any Available Foreign Currency is no longer the lawful currency of its
respective country, all funding and payment Obligations to be made in such
affected currency under this Agreement shall be satisfied in Euros.


 


(c)           If
one or more members of the Consolidated Group shall wind up, liquidate,
dissolve or become a debtor in bankruptcy while there remains outstanding:  (i) any amounts owing to the Lenders
hereunder or under the Notes, (ii) any damages owing to the Lenders in respect
of a breach of any of the terms hereof, or (iii) any judgment or order rendered
in respect of such amounts or damages, the Borrower shall indemnify and hold
the Lenders harmless against any deficiency with respect to the applicable
Available Foreign Currency in the amounts received by the Lenders arising or
resulting from any variation as between: 
(i) the rate of exchange at which the applicable Available Foreign
Currency is converted into another currency (the “Liquidation Currency”)
for purposes of such winding-up, liquidation, dissolution or bankruptcy with
regard to the amount in the applicable Available Foreign Currency due or


 


27

















 


contingently due hereunder or under the Notes or under any judgment or
order to which the relevant Obligations hereunder or under the Notes shall have
been merged and (ii) the rate of exchange at which Administrative Agent
could, in accordance with normal banking procedures, be able to purchase the
applicable Available Foreign Currency with the Liquidation Currency at the
earlier of (A) the date of payment of such amounts or damages and (B) the
final date or dates for the filing of proofs of a claim in a winding-up,
liquidation, dissolution or bankruptcy. 
As used in the preceding sentence, the “final date” or dates for the
filing of proofs of a claim in a winding-up, liquidation, dissolution or
bankruptcy shall be the date fixed by the liquidator under the applicable law
as being the last practicable date as of which the liabilities of the Borrower
may be ascertained for such winding-up, liquidation, dissolution or bankruptcy
before payment by the liquidator or other appropriate person in respect
thereof.


 


(d)           The
Borrower agrees to indemnify the Administrative Agent and the Lenders against
any loss or expense which the Administrative Agent or such Lenders may sustain
or incur in liquidating or employing deposits from third parties acquired to
effect, fund or maintain any Loan made in an Available Foreign Currency or any
part thereof as a consequence of (i) the Borrower’s failure to make a payment
on other than the due date of such Loan, or (ii) the Borrower’s failure to
borrow under, convert to or renew under the applicable Available Foreign
Currency on a binding effective date of such borrowing, conversion or
renewal.  The Administrative Agent’s
determination of an amount payable under this paragraph (d) shall, in the
absence of error, be conclusive and shall be payable on demand.


 


(e)           The
Administrative Agent may from time to time in its discretion calculate the
Dollar Equivalent of any Revolving Loan denominated in an Available Foreign
Currency.  In the event that the
aggregate Dollar Equivalent of the outstanding principal amount of the
Revolving Loans denominated in an Available Foreign Currency at any time
exceeds the Foreign Currency Sublimit, the Administrative Agent shall promptly
give notice of such fact to the Borrower and the Lenders, and the Borrower
shall be required to make a payment to the Administrative Agent to reduce the
outstanding principal amount of the outstanding Revolving Loans denominated in
an Available Foreign Currency so that the Dollar Equivalent thereof equals not
more than the Foreign Currency Sublimit. 
Such payment shall be made within two (2) Business Days following the
date of receipt of such notice given by the Administrative Agent.  Each such prepayment shall be accompanied by
a payment of all accrued and unpaid interest on the Revolving Loans prepaid and
any applicable breakage fees and funding losses pursuant to Section 2.18.


 


Section 2.7.           Interest Elections.


 


(a)           Each
Borrowing initially shall be of the Type specified in the applicable Notice of
Borrowing, and in the case of a Eurodollar Borrowing, shall have an initial
Interest Period as specified in such Notice of Borrowing.  Thereafter, the Borrower may elect to
convert such Borrowing into a different Type or to continue such Borrowing, and
in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all
as provided in this Section.  The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders


 


28

















 


holding Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.  This
Section shall NOT apply to Eurodollar Borrowings denominated in an
Available Foreign Currency (other than continuations in the same Available
Foreign Currency which shall be permitted) or Swingline Borrowings, which may
not be converted or continued.


 


(b)           To
make an election pursuant to this Section, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing substantially in the form of Exhibit
2.6 attached hereto (a “Notice of Conversion/Continuation”) that is to be
converted or continued, as the case may be, (x) prior to 10:00 a.m. (Atlanta,
Georgia time) one (1) Business Day prior to the requested date of a conversion
into a Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta, Georgia time)
three (3) Business Days prior to a continuation of or conversion into a
Eurodollar Borrowing.  Each such Notice
of Conversion/Continuation shall be irrevocable and shall specify (i) the
Borrowing to which such Notice of Continuation/Conversion applies and if
different options are being elected with respect to different portions thereof,
the portions thereof that are to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
shall be specified for each resulting Borrowing); (ii) the effective date of
the election made pursuant to such Notice of Continuation/Conversion, which
shall be a Business Day, (iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing
is to be a Eurodollar Borrowing, the Interest Period applicable thereto after
giving effect to such election, which shall be a period contemplated by the
definition of “Interest Period”.  If any
such Notice of Continuation/Conversion requests a Eurodollar Borrowing but does
not specify an Interest Period, the Borrower shall be deemed to have selected
an Interest Period of one month.  The
principal amount of any resulting Borrowing shall satisfy the minimum borrowing
amount for Eurodollar Borrowings and Base Rate Borrowings set forth in
Section 2.3.


 


(c)           If,
on the expiration of any Interest Period in respect of any Eurodollar
Borrowing, the Borrower shall have failed to deliver a Notice of Conversion/
Continuation, then, unless such Borrowing is repaid as provided herein, the
Borrower shall be deemed to have elected to convert such Borrowing to a Base
Rate Borrowing; provided, that if, on the expiration of any Interest Period in
respect of any Eurodollar Borrowing denominated in an Available Foreign
Currency, the Borrower shall have failed to deliver a Notice of Conversion/
Continuation for such Borrowing in the same Available Foreign Currency, then
unless such Borrowing is repaid as provided herein, the Borrower shall be deemed
to have elected to convert such Borrowing to a Base Rate Borrowing in the
Dollar Equivalent of such Borrowing.  
No Borrowing may be converted into, or continued as, a Eurodollar
Borrowing if a Default or an Event of Default exists, unless the Administrative
Agent and each of the Lenders shall have otherwise consented in writing.  During an Event of Default (unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing), all Eurodollar Loans denominated in an Available Foreign Currency
shall be converted into Dollars upon the expiration of the Interest Period
applicable thereto.  No conversion of
any Eurodollar Loans shall be permitted except on the last day of the Interest
Period in respect thereof.


 


29

















 


(d)           Upon
receipt of any Notice of Conversion/Continuation, the Administrative Agent
shall promptly notify each Lender of the details thereof and of such Lender’s
portion of each resulting Borrowing.


 


Section 2.8.           Optional
Reduction and Termination of Commitments.


 


(a)           Unless
previously terminated, all Revolving Commitments, Swingline Commitments and LC
Commitments shall terminate on the Revolving Commitment Termination Date.


 


(b)           Upon
at least three (3) Business Days’ prior written notice (or telephonic notice
promptly confirmed in writing) to the Administrative Agent (which notice shall
be irrevocable), the Borrower may reduce the Aggregate Revolving Commitments in
part or terminate the Aggregate Revolving Commitments in whole; provided, that
(i) any partial reduction shall apply to reduce proportionately and permanently
the Revolving Commitment of each Lender, (ii) any partial reduction pursuant to
this Section 2.8 shall be in an amount of at least $5,000,000 and any larger
multiple of $1,000,000, and (iii) no such reduction shall be permitted which
would reduce the Aggregate Revolving Commitment Amount to an amount less than
the outstanding Revolving Credit Exposures of all Lenders.  Any such reduction in the Aggregate
Revolving Commitment Amount below the sum of the principal amount of the
Swingline Commitment and the LC Commitment shall result in a proportionate
reduction (rounded to the next lowest integral multiple of $100,000) in the
Swingline Commitment and the LC Commitment.


 


Section 2.9.           Repayment
of Loans.


 


(a)           The
outstanding principal amount of all Revolving Loans shall be due and payable
(together with accrued and unpaid interest thereon) on the Revolving Commitment
Termination Date; provided, however, the outstanding principal amount of all
Eurodollar Loans denominated in an Available Foreign Currency shall be due and
payable (together with accrued and unpaid interest thereon) on the last day of
the Interest Period (unless such Eurodollar Loans denominated in an Available
Foreign Currency are continued in the same Available Foreign Currency in
accordance with Section 2.7; and


 


(b)           The
principal amount of each Swingline Borrowing shall be due and payable (together
with accrued and unpaid interest thereon) on the earlier of (i) the last day of
the Interest Period applicable to such Borrowing and (ii) the Revolving
Commitment Termination Date.


 


Section 2.10.        Evidence of Indebtedness.


 


(a)           Each
Lender shall maintain in accordance with its usual practice appropriate records
evidencing the Indebtedness of the Borrower to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable thereon and paid to such Lender from time to time under
this Agreement.  The Administrative
Agent shall maintain  appropriate
records  in which shall be recorded
(i) the


 


30

















 


Revolving
Commitment of each Lender, (ii) the amount of each Loan made hereunder by each
Lender, the Class and Type thereof and the Interest Period applicable thereto,
(iii) the date of each continuation thereof pursuant to Section 2.7,
(iv) the date of each conversion of all or a portion thereof to another Type
pursuant to Section 2.7, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and
amount of any sum received by the Administrative Agent hereunder from the
Borrower in respect of the Loans and each Lender’s Pro Rata Share thereof.  The entries made in such records shall be prima facie evidence
of the existence and amounts of the obligations of the Borrower therein
recorded; provided, that the failure or delay of any Lender or the
Administrative Agent in maintaining or making entries into any such record or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans (both principal and unpaid accrued interest) of such Lender
in accordance with the terms of this Agreement.


 


(b)           At
the request of any Lender (including the Swingline Lender) at any time, the
Borrower agrees that it will execute and deliver to such Lender a Revolving
Credit Note and, in the case of the Swingline Lender only, a Swingline Note,
payable to the order of such Lender.


 


Section 2.11.        Optional Prepayments.  The Borrower shall have the right at any
time and from time to time to prepay any Borrowing (except for Eurodollar Loans
which the Borrower may only prepay on the expiration of the current Interest
Period), in whole or in part, without premium or penalty by giving irrevocable
written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 11:00 a.m. (Atlanta, Georgia time) not less than three
(3) Business Days prior to any such prepayment, (ii) in the case of any
prepayment of any Base Rate Borrowing, not less than one Business Day prior to
the date of such prepayment, and (iii) in the case of Swingline Borrowings,
prior to 11:00 a.m. (Atlanta, Georgia time) on the date of such
prepayment.  Each such notice shall be
irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Borrowing or portion thereof to be prepaid.  Upon receipt of any such notice, the
Administrative Agent shall promptly notify each affected Lender of the contents
thereof and of such Lender’s Pro Rata Share of any such prepayment.  If such notice is given, the aggregate
amount specified in such notice shall be due and payable on the date designated
in such notice, together with accrued interest to such date on the amount so
prepaid in accordance with Section 2.13(e); provided, that if a Eurodollar
Borrowing is prepaid on a date other than the last day of an Interest Period
applicable thereto, the Borrower shall also pay all amounts required pursuant
to Section 2.19.  Each partial
prepayment of any Loan (other than a Swingline Loan) shall be in an amount that
would be permitted in the case of an advance of a Revolving Borrowing of the
same Type pursuant to Section 2.2 or in the case of a Swingline Loan
pursuant to Section 2.4.  Each
prepayment of a Borrowing shall be applied ratably to the Loans comprising such
Borrowing.


 


Section 2.12.        Mandatory Prepayments.  If at any time (i) the Dollar Equivalent of
the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving
Commitment Amount, as reduced pursuant to Section 2.8 or otherwise or (ii)
the aggregate principal amount of all Letter of Credit Obligations exceeds an
amount equal to 105% of the LC Commitment, the


 


31

















 


Borrower shall
immediately repay Swingline Loans and Revolving Loans in an amount equal to
such excess, together with all accrued and unpaid interest on such excess
amount and any amounts due under Section 2.19.  Each prepayment shall be applied first to the Swingline Loans to
the full extent thereof, second to the Base Rate Loans to the full extent
thereof, and finally to Eurodollar Loans to the full extent thereof.  If after giving effect to prepayment of all
Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all
Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Issuing Bank and the Lenders,
an amount in cash equal to such excess plus any accrued and unpaid fees thereon
to be held as collateral for the LC Exposure. 
Such account shall be administered in accordance with
Section 2.22(g) hereof.


 


Section 2.13.        Interest on Loans.


 


(a)           The
Borrower shall pay interest on each Loan at either (i) the Base Rate in effect
from time to time or (ii) LIBOR plus the Applicable Margin for each Revolving
Loan in effect from time to time.


 


(b)           The
Borrower shall pay interest on each Swingline Loan at the Swingline Rate in
effect from time to time.


 


(c)           While
an Event of Default exists or after acceleration, at the option of the Required
Lenders, the Borrower shall pay interest (“Default Interest”) with respect to
all Eurodollar Loans at the rate otherwise applicable for the then-current
Interest Period plus an additional 2% per annum until the last day of such
Interest Period, and thereafter, and with respect to all Base Rate Loans
(including all Swingline Loans)  and
all other Obligations hereunder (other than Loans), at an all-in rate in effect
for Base Rate Loans, plus an additional 2% per annum.


 


(d)           Interest
on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof.  Interest on all outstanding Base Rate Loans
and Swingline Loan shall be payable quarterly in arrears on the last day of
each March, June, September and December and on the Revolving
Commitment Termination Date, as the case may be.  Interest on all outstanding Eurodollar Loans shall be payable on
the last day of each Interest Period applicable thereto, and, in the case of
any Eurodollar Loans having an Interest Period in excess of three months or 90
days, respectively, on each day which occurs every three months or 90 days, as
the case may be, after the initial date of such Interest Period, and on the
Revolving Commitment Termination Date. 
Interest on each Swingline Loan shall be payable on the maturity date of
such Loan, which shall be the last day of the Interest Period applicable
thereto.  Interest on any Loan which is
converted into a Loan of another Type or which is repaid or prepaid shall be
payable on the date of such conversion or on the date of any such repayment or
prepayment (on the amount repaid or prepaid) thereof.  All Default Interest shall be payable on demand.


 


32

















 


(e)           The
Administrative Agent shall determine each interest rate applicable to the Loans
hereunder and shall promptly notify the Borrower and the Lenders of such rate
in writing (or by telephone, promptly confirmed in writing).  Any such determination shall be conclusive
and binding for all purposes, absent manifest error.


 


Section 2.14.        Fees.


 


(a)           The
Borrower shall pay to the Administrative Agent for its own account fees in the
amounts and at the times previously agreed upon in writing by the Borrower and
the Administrative Agent.


 


(b)           The
Borrower agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee, which
shall accrue at the Applicable Percentage per annum (determined daily in accordance
with Schedule I) on the daily amount of the unused Revolving Commitment of such Lender during the
Availability Period; provided, that if such Lender continues to have any
Revolving Credit Exposure after the Revolving Commitment Termination Date, then
the commitment fee shall
continue to accrue on the amount of
such Lender’s unused Revolving Commitment from and after the Revolving
Commitment Termination Date to the date that all of such Lender’s Revolving
Credit Exposure has been paid in full. 
For purposes of computing commitment fees with respect to the Revolving
Commitments, the Revolving Commitment of each Lender shall be deemed used to
the extent of the outstanding Revolving Loans and LC Exposure, but not
Swingline Exposure, of such Lender.


 


(c)           The
Borrower agrees to pay (i) to the Administrative Agent, for the account of each
Lender, a letter of credit fee with respect to its participation in each Letter
of Credit, which shall accrue at a rate per annum equal to the Applicable
Margin for Eurodollar Loans then in effect on the average daily amount of such
Lender’s LC Exposure attributable to such Letter of Credit during the period
from and including the date of issuance of such Letter of Credit to but
excluding the date on which such Letter of Credit expires or is drawn in full
(including without limitation any LC Exposure that remains outstanding after
the Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its
own account a fronting fee, which shall accrue at the rate of 0.125% per annum
on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the Availability Period
(or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank’s standard fees with respect
to issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. 
Notwithstanding the foregoing, if the Required Lenders elect to increase
the interest rate on the Loans to the Default Interest pursuant to
Section 2.13(d), the rate per annum used to calculate the letter of credit
fee pursuant to clause (i) above shall automatically be increased by an
additional 2% per annum.


 


(d)           The
Borrower shall pay to the Administrative Agent, for the ratable benefit of each
Lender, the upfront fee previously agreed upon by the Borrower and the
Administrative Agent, which shall be due and payable on the Closing Date.


 


33

















 


(e)           Accrued
fees under paragraphs (b) and (c) above shall be payable quarterly in arrears
on the last day of each March, June, September and December, commencing on
September 30, 2004 and on
the Revolving Commitment Termination Date (and if later, the date the Loans and
LC Exposure shall be repaid in their entirety); provided further, that any such
fees accruing after the Revolving Commitment Termination Date shall be payable
on demand.


 


Section 2.15.        Computation of Interest
and Fees.


 


All computations of interest and fees hereunder shall be made on the
basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed).  Each determination by the
Administrative Agent of an interest amount or fee hereunder shall be made in
good faith and, except for manifest error, shall be final, conclusive and
binding for all purposes.


 


Section 2.16.        Inability to Determine Interest Rates.  If prior to the commencement of any Interest
Period for any Eurodollar Borrowing,


 


(i)            the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant interbank
market, adequate means do not exist for ascertaining LIBOR for such Interest
Period, or


 


(ii)           the Administrative Agent shall have received
notice from the Required Lenders that the Adjusted LIBO Rate does not
adequately and fairly reflect the cost to such Lenders (or Lender, as the case
may be) of making, funding or maintaining their (or its, as the case may be)
Eurodollar Loans for such Interest Period,


 


the Administrative Agent shall give written notice (or telephonic
notice, promptly confirmed in writing) to the Borrower and to the Lenders as
soon as practicable thereafter.  In the
case of Eurodollar Loans, until the Administrative Agent shall notify the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) the obligations of the Lenders to make Eurodollar Revolving
Loans or to continue or convert outstanding Loans as or into Eurodollar Loans
shall be suspended and (ii) all such affected Loans shall automatically, on the
last day of the then current Interest Period applicable thereto, unless the
Borrower prepays such Loans in accordance with this Agreement, (A) if such
Loans are Eurodollar Loans, be converted into Base Rate Loans and (B) if such
Loans are Eurodollar Loans denominated in an Available Foreign Currency, be
exchanged for the Dollar Equivalent thereof and converted into Base Rate
Loans.  Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any
Eurodollar Revolving Borrowing for which a Notice of Revolving Borrowing has
previously been given that it elects not to borrow on such date, then such
Revolving Borrowing shall be made as a Base Rate Borrowing.


 


Section 2.17.        Illegality.  If, after the Closing Date, any Change in Law shall make it
unlawful or impossible for any Lender to make or maintain or fund Loans in the
applicable


 


34

















 


Available
Foreign Currency, the Administrative Agent shall notify the Borrower.  Upon receipt of such notice, the applicable
Eurodollar Loan made in an Available Foreign Currency shall be repaid by the
Borrower and/or converted to an Available Foreign Currency or Dollars on
either:  (i) the last day of the then
current Interest Period for the affected Eurodollar Loan, if Lenders may
lawfully continue to maintain a Loan at such Available Foreign Currency to such
day, or (ii) immediately, if Lenders may not lawfully continue to so maintain
such Eurodollar Loan. In the case of 
the making of a Eurodollar Borrowing denominated in an Available Foreign
Currency, such Lender’s Revolving Loan shall be made as a Base Rate Loan as a
part of the same Borrowing for the same Interest Period and if the affected
Loan is then outstanding, such Loan shall be exchanged for the Dollar
Equivalent thereof and converted to a Based Rate Loan either (i) on the last
day of the then current Interest Period applicable to such Loan if such Lender
may lawfully continue to maintain such Loan to such date or (ii) immediately if
such Lender shall determine that it may not lawfully continue to maintain such
Loan to such date.  Notwithstanding the
foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith
exercise of its discretion.


 


Section 2.18.        Increased Costs.


 


(a)           If
any Change in Law shall:


 


(i)            impose, modify or deem applicable any
reserve, special deposit or similar requirement that is not otherwise included
in the determination of the Adjusted LIBO Rate hereunder against assets of,
deposits with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or


 


(ii)           impose on any Lender or on the Issuing Bank
or the eurodollar interbank market any other condition affecting this Agreement
or any Eurodollar Loans made by such Lender or any Letter of Credit or any
participation therein;


 


and the result of either of the foregoing is to increase the cost to
such Lender of making, converting into, continuing or maintaining a Eurodollar
Loan or to increase the cost to such Lender or the Issuing Bank of
participating in or issuing any Letter of Credit or to reduce the amount
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or any other amount), then the Borrower shall promptly pay,
upon written notice from and demand by such Lender on the Borrower (with a copy
of such notice and demand to the Administrative Agent), to the Administrative
Agent for the account of such Lender, within five Business Days after the date
of such notice and demand, additional amount or amounts sufficient to
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.


 


(b)           If
any Lender or the Issuing Bank shall have determined that on or after the date
of this Agreement any Change in Law regarding capital requirements has or would
have


 


35

















 


the effect of
reducing the rate of return on such Lender’s or the Issuing Bank’s capital (or
on the capital of such Lender’s or the Issuing Bank’s parent corporation) as a
consequence of its obligations hereunder or under or in respect of any Letter
of Credit to a level below that which such Lender or the Issuing Bank or such
Lender’s or the Issuing Bank’s parent corporation could have achieved but for
such Change in Law (taking into consideration such Lender’s or the Issuing
Bank’s policies or the policies of such Lender’s or the Issuing Bank’s parent
corporation with respect to capital adequacy) then, from time to time, within
five (5) Business Days after receipt by the Borrower of written demand by such
Lender (with a copy thereof to the Administrative Agent), the Borrower shall
pay to such Lender such additional amounts as will compensate such Lender or
the Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation for
any such reduction suffered.


 


(c)           A
certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or such Lender’s or the
Issuing Bank’s parent corporation, as the case may be, specified in paragraph
(a) or (b) of this Section shall be delivered to the Borrower (with a copy
to the Administrative Agent) and shall be conclusive, absent manifest
error.  The Borrower shall pay any such
Lender or the Issuing Bank, as the case may be, such amount or amounts within
10 days after receipt thereof.


 


(d)           If
and so long as any Lender is required to comply with reserve assets, liquidity,
cash margin or other requirements of any monetary or other authority (including
any such requirement imposed by the European Central Bank or the European
System of Central Banks, but excluding requirements reflected in the Eurodollar
Reserve Percentage) in respect of any such Lender’s Eurodollar Loans
denominated in an Available Foreign Currency, such Lender may require the
Borrower to pay, contemporaneously with each payment of interest on each of
such Loans subject to such requirements, additional interest on such Loan at a
rate per annum specified by such Lender to be the cost to such Lender of
complying with such requirement in relation to such Loan.


 


(e)           Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or
the Issuing Bank’s right to demand such compensation.


 


Section 2.19.        Funding Indemnity.  In the event of (a) the payment of any
principal of a Eurodollar Loan other than on the last day of the Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion or continuation of a Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, or (c) the failure by the Borrower
to borrow, prepay, convert or continue any Eurodollar Loan on the date
specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked), then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event.  In the case of a Eurodollar Loan, such loss,
cost or expense shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (A) the amount of interest that would have accrued
on the principal amount of such Eurodollar Loan if such event had not occurred
at the Adjusted LIBO Rate applicable to such Eurodollar Loan for the period
from the date of such event to the last day


 


36

















 


of the then
current Interest Period therefor (or in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
for such Eurodollar Loan) over (B) the amount of interest that would accrue on
the principal amount of such Eurodollar Loan for the same period if the
Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan.  A
certificate as to any additional amount payable under this Section 2.19
submitted to the Borrower by any Lender (with a copy to the Administrative
Agent) shall be conclusive, absent manifest error.


 


Section 2.20.        Taxes.


 


(a)           Any
and all payments by or on account of any obligation of the Borrower hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided, that if the Borrower shall be required to deduct any
Indemnified Taxes or 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 Issuing Bank (as the case may be)
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii)
the Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


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


 


(c)           The
Borrower shall indemnify the Administrative Agent, each Lender and the Issuing
Bank, within five (5) Business Days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent, such Lender or the Issuing Bank, as the case may be, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) 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 Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or the Issuing Bank, shall be
conclusive absent manifest error.


 


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


 


(e)           Any
Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the Code or any treaty to which the United States is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the


 


37

















 


Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate. 
Without limiting the generality of the foregoing, each Foreign Lender
agrees that it will deliver to the Administrative Agent and the Borrower (or in
the case of a Participant, to the Lender from which the related participation
shall have been purchased), as appropriate, two (2) duly completed copies of
(i) Internal Revenue Service Form W-8 ECI, or any successor form thereto,
certifying that the payments received from the Borrower hereunder are
effectively connected with such Foreign Lender’s conduct of a trade or business
in the United States; or (ii) Internal Revenue Service Form W-8 BEN, or any
successor form thereto, certifying that such Foreign Lender is entitled to
benefits under an income tax treaty to which the United States is a party which
reduces the rate of withholding tax on payments of interest; or (iii) Internal
Revenue Service Form W-8 BEN, or any successor form prescribed by the Internal
Revenue Service, together with a certificate (A) establishing that the payment
to the Foreign Lender qualifies as “portfolio interest” exempt from U.S.
withholding tax under Code section 871(h) or 881(c), and (B) stating that
(1) the Foreign Lender is not a bank for purposes of Code
section 881(c)(3)(A), or the obligation of the Borrower hereunder is not,
with respect to such Foreign Lender, a loan agreement entered into in the
ordinary course of its trade or business, within the meaning of that section;
(2) the Foreign Lender is not a 10% shareholder of the Borrower within the
meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the Foreign
Lender is not a controlled foreign corporation that is related to the Borrower
within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. 
Each such Foreign Lender shall deliver to the Borrower and the
Administrative Agent such forms on or before the date that it becomes a party
to this Agreement (or in the case of a Participant, on or before the date such
Participant purchases the related participation).  In addition, each such Foreign Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered
by such Foreign Lender.  Each such
Foreign Lender shall promptly notify the Borrower and the Administrative Agent
at any time that it determines that it is no longer in a position to provide
any previously delivered certificate to the Borrower (or any other form of
certification adopted by the Internal Revenue Service for such purpose).


 


Section 2.21.        Payments Generally; Pro
Rata Treatment; Sharing of Set-offs.


 


(a)           The
Borrower shall make each payment required to be made by it hereunder (whether
of principal, interest, fees or reimbursement of LC Disbursements, or of
amounts payable under Sections 2.18, 2.19 or 2.20, or otherwise) (i) prior to
12:00 noon (Atlanta, Georgia time), in the case of payments in Dollars and (ii)
prior to 12:00 noon (at the Applicable Lending Office where the applicable
Foreign Currency Payment Account is maintained) in the case of payments in an
Available Foreign Currency, on the date when due, in immediately available
funds, free and clear of any defenses, rights of set-off, counterclaim, or
withholding or deduction of taxes.  Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon.  All such payments shall be made to the
Administrative Agent at the Payment Office or at the applicable Foreign 


 


38

















 


Currency
Payment Account, as the case may be, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that
payments pursuant to Sections 2.18, 2.19 or 2.20 and 10.3 shall be made
directly to the Persons entitled thereto. 
The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof.  If any
payment hereunder shall be due on a day that is not a Business Day, the date
for payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be made payable
for the period of such extension.  All
payments hereunder shall be made in Dollars; provided, however, that all
payments of principal and interest with respect to Eurodollar Loans denominated
in an Available Foreign Currency shall be made in accordance with
Section 2.6(b).


 


(b)           If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.


 


(c)           If
any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Revolving Loans or participations in LC Disbursements or Swingline Loans
that would result in such Lender receiving payment of a greater proportion of
the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary 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 Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply).  The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.


 


39

















 


(d)           Unless
the Administrative Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Administrative Agent for the
account of the Lenders or the Issuing Bank 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 Lenders or the Issuing Bank, as the case may
be, the amount or amounts due.  In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank 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 Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.


 


(e)           If
any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.4(b), 2.5(b), 2.21(d), 2.22(d) or (e) or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender’s obligations under
such Sections until all such unsatisfied obligations are fully paid.


 


Section 2.22.        Letters of Credit.


 


(a)           During
the Availability Period, the Issuing Bank, in reliance upon the agreements of
the other Lenders pursuant to Section 2.22(d), agrees to issue, at the
request of the Borrower, Letters of Credit for the account of the Borrower on
the terms and conditions hereinafter set forth; provided, that (i) each Letter
of Credit shall expire on the earlier of (A) the date one year after the date
of issuance of such Letter of Credit (or in the case of any renewal or
extension thereof, one year after such renewal or extension) and (B) the date
that is five (5) Business Days prior to the Revolving Commitment Termination
Date; (ii) each Letter of Credit shall be in a stated amount of at least $100,000; and (iii) the Borrower may
not request any Letter of Credit, if, after giving effect to such issuance (A)
the aggregate LC Exposure would exceed the LC Commitment or (B) the aggregate
Revolving Credit Exposure of all Lenders would exceed the Aggregate Revolving
Commitment Amount.  Upon the issuance of each Letter of Credit each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Issuing Bank without recourse a participation in such Letter
of Credit equal to such Lender’s Pro Rata Share of the aggregate amount
available to be drawn under such Letter of Credit.  Each issuance of a Letter of Credit shall be deemed to utilize
the Revolving Commitment of each Lender by an amount equal to the amount of
such participation.


 


(b)           To
request the issuance of a Letter of Credit (or any amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall give the
Issuing Bank and the Administrative Agent irrevocable written notice at least
three (3) Business Days prior to the requested date of such issuance specifying
the date (which shall be a Business Day) such Letter of Credit is to be issued
(or amended, extended or renewed, as the case may be), the expiration date of
such Letter of Credit, the amount of such Letter of Credit, the name and
address of the


 


40

















 


beneficiary  thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit.  In addition to the satisfaction of the
conditions in Article 3, the issuance of such Letter of Credit (or any
amendment which increases the amount of such Letter of Credit) will be subject
to the further conditions that such Letter of Credit shall be in such form and
contain such terms as the Issuing Bank shall approve and that the Borrower
shall have executed and delivered any additional applications, agreements and
instruments relating to such Letter of Credit as the Issuing Bank shall
reasonably require; provided, that in the event of any conflict between such
applications, agreements or instruments and this Agreement, the terms of this
Agreement shall control.


 


(c)           At
least two Business Days prior to the issuance of any Letter of Credit, the
Issuing Bank will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received such notice and if not, the
Issuing Bank will provide the Administrative Agent with a copy thereof.  Unless the Issuing Bank has received notice
from the Administrative Agent on or before the Business Day immediately
preceding the date the Issuing Bank is to issue the requested Letter of Credit
(1) directing the Issuing Bank not to issue the Letter of Credit because such
issuance is not then permitted hereunder because of the limitations set forth
in Section 2.22(a) or that one or more conditions specified in
Article 3are not then satisfied, then, subject to the terms and conditions
hereof, the Issuing Bank shall, on the requested date, issue such Letter of
Credit in accordance with the Issuing Bank’s usual and customary business
practices.


 


(d)           The
Issuing Bank shall examine all documents purporting to represent a demand for
payment under a Letter of Credit promptly following its receipt thereof.  The Issuing Bank shall notify the Borrower
and the Administrative Agent of such demand for payment and whether the Issuing
Bank has made or will make a LC Disbursement thereunder; provided, that any
failure to give or delay in giving such notice shall not relieve the Borrower
of its obligation to reimburse the Issuing Bank and the Lenders with respect to
such LC Disbursement.  The Borrower
shall be irrevocably and unconditionally obligated to reimburse the Issuing
Bank for any LC Disbursements paid by the Issuing Bank in respect of such
drawing, without presentment, demand or other formalities of any kind.  Unless the Borrower shall have notified the
Issuing Bank and the Administrative Agent prior to 11:00 a.m. (Atlanta Georgia
time) on the Business Day immediately prior to the date on which such drawing
is honored that the Borrower intends to reimburse the Issuing Bank for the
amount of such drawing in funds other than from the proceeds of Revolving
Loans, the Borrower shall be deemed to have timely given a Notice of Revolving
Borrowing to the Administrative Agent requesting the Lenders to make a Base
Rate Borrowing  on the date on
which such drawing is honored in an exact amount due to the Issuing Bank;
provided, that for purposes solely of such Borrowing, the conditions precedents
set forth in Section 3.2 hereof shall not be applicable.  The Administrative Agent shall notify the
Lenders of such Borrowing in accordance with Section 2.3, and each Lender
shall make the proceeds of its Base Rate Loan included in such Borrowing
available to the Administrative Agent for the account of the Issuing Bank in
accordance with Section 2.5.  The
proceeds of such Borrowing shall be applied directly by the Administrative
Agent to reimburse the Issuing Bank for such LC Disbursement.


 


41

















 


(e)           If
for any reason a Base Rate Borrowing may not be (as determined in the sole
discretion of the Administrative Agent), or is not, made in accordance with the
foregoing provisions, then each Lender (other than the Issuing Bank) shall be
obligated to fund the participation that such Lender purchased pursuant to
subsection (a) in an amount equal to its Pro Rata Share  of such LC Disbursement on and as of the
date which such Base Rate Borrowing should have occurred.  Each
Lender’s obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including without
limitation (i) any setoff, counterclaim, recoupment, defense or other right
that such Lender or any other Person may have against the Issuing Bank or any
other Person for any reason whatsoever, (ii) the existence of a Default or an
Event of Default or the termination of the Aggregate Revolving Commitments,
(iii) any adverse change in the condition (financial or otherwise) of the
Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by the
Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.  On the date that such participation is required to be funded,
each Lender shall promptly transfer, in immediately available funds, the amount
of its participation to the Administrative Agent for the account of the Issuing
Bank.  Whenever, at any time after the
Issuing Bank has received from any such Lender the funds for its participation
in a LC Disbursement, the Issuing Bank (or the Administrative Agent on its
behalf) receives any payment on account thereof, the Administrative Agent or
the Issuing Bank, as the case may be, will distribute to such Lender its Pro
Rata Share of such payment; provided, that if such payment is required to be
returned for any reason to the Borrower or to a trustee, receiver, liquidator,
custodian or similar official in any bankruptcy proceeding, such Lender will
return to the Administrative Agent or the Issuing Bank any portion thereof
previously distributed by the Administrative Agent or the Issuing Bank to it.


 


(f)            To
the extent that any Lender shall fail to pay any amount required to be paid
pursuant to paragraph (d) above on the due date therefor, such Lender shall pay
interest to the Issuing Bank (through the Administrative Agent) on such amount
from such due date to the date such payment is made at a rate per annum equal
to the Federal Funds Rate; provided, that if such Lender shall fail to make
such payment to the Issuing Bank within three (3) Business Days of such due
date, then, retroactively to the due date, such Lender shall be obligated to
pay interest on such amount at the Default Rate.


 


(g)           If
any Event of Default shall occur and be continuing, on the Business Day that
the Borrower receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Issuing Bank and
the Lenders, an amount in cash equal to the LC Exposure as of such date plus
any accrued and unpaid fees thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described
in clause (g) or (h) of Section 8.1. 
Such deposit shall be held by the Administrative Agent as collateral for
the payment and performance of the obligations of the Borrower under this
Agreement.  The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account.


 


42

















 


Borrower
agrees to execute any documents and/or certificates to effectuate the intent of
this paragraph.  Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the
Borrower’s risk and expense, such deposits shall not bear interest.  Interest and profits, if any, on such
investments shall accumulate in such account. 
Moneys in such account shall be applied by the Administrative Agent to
reimburse the Issuing Bank for LC Disbursements for which it had not been
reimbursed and to the extent so applied, shall be held for the satisfaction of
the reimbursement obligations of the Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated, with the consent of the
Required Lenders, be applied to satisfy other obligations of the Borrower under
this Agreement and the other Loan Documents. 
If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not so applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or
waived.


 


(h)           Promptly
following the end of each calendar quarter, the Issuing Bank shall deliver
(through the Administrative Agent) to each Lender and the Borrower a report
describing the aggregate Letters of Credit outstanding at the end of such
Fiscal Quarter.  Upon the request of any
Lender from time to time, the Issuing Bank shall deliver to such Lender any
other information reasonably requested by such Lender with respect to each
Letter of Credit then outstanding.


 


(i)            The
Borrower’s obligation to reimburse LC Disbursements hereunder shall be
absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement under all circumstances whatsoever
and irrespective of any of the following circumstances:


 


(i)            Any lack of validity or enforceability of
any Letter of Credit or this Agreement;


 


(ii)           The existence of any claim, set-off, defense
or other right which the Borrower or any Subsidiary or Affiliate of the
Borrower may have at any time against a beneficiary or any transferee of any
Letter of Credit (or any Persons or entities for whom any such beneficiary or
transferee may be acting), any Lender (including the Issuing Bank) or any other
Person, whether in connection with this Agreement or the Letter of Credit or
any document related hereto or thereto or any unrelated transaction;


 


(iii)          Any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect;


 


(iv)          Payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document to the Issuing Bank
that does not comply with the terms of such Letter of Credit;


 


43

















 


(v)           Any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower’s obligations hereunder; or


 


(vi)          The existence of a Default or an Event of
Default.


 


Neither the Administrative Agent, the Issuing Bank, the Lenders nor any
Related Party of any of the foregoing shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to above), or any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided, that the foregoing shall not
be construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any actual direct damages (as opposed to special, indirect (including
claims for lost profits or other consequential damages), or punitive damages,
claims in respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are caused by the
Issuing Bank’s failure to exercise due care when determining whether drafts or
other documents presented under a Letter of Credit comply with the terms
thereof.  The parties hereto expressly
agree, that in the absence of gross negligence or willful misconduct on the
part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised due care in
each such determination.  In furtherance
of the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


 


(j)            Each
Letter of Credit shall be subject to the Uniform Customs and Practices for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time, and, to the
extent not inconsistent therewith, the governing law of this Agreement set
forth in Section 10.5.


 


Section 2.23.        Increase of Commitments;
Additional Lenders.


 


(a)           So
long as no Event of Default has occurred and is continuing, from time to time
on or after the Closing Date, Borrower may, upon at least 30 days’ written
notice to the Administrative Agent (who shall promptly provide a copy of such
notice to each Lender), propose to increase the Aggregate Revolving Commitment
Amount up to an amount not to exceed $100,000,000
(the amount of any such increase, the “Additional Commitment Amount”).  Each Lender shall have the right for a
period of 15 days following receipt of such notice, to elect by written notice
to the Borrower and the Administrative Agent to increase its Revolving


 


44

















 


Commitment by
a principal amount equal to its Pro Rata Share of the Additional Commitment
Amount.  No Lender (or any successor
thereto) shall have any obligation to increase its Revolving Commitment or its
other obligations under this Agreement and the other Loan Documents, and any
decision by a Lender to increase its Revolving Commitment shall be made in its
sole discretion independently from any other Lender.


 


(b)           If
any Lender shall not elect to increase its Revolving Commitment pursuant to
subsection (a) of this Section, the Borrower may designate another bank or
other financial institution (which may be, but need not be, one or more of the
existing Lenders) which at the time agrees to, in the case of any such Person
that is an existing Lender, increase its Revolving Commitment and in the case
of any other such Person (an “Additional Lender”), become a party to this
Agreement; provided, however, that any new bank or financial institution must
be acceptable to the Administrative Agent and Lead Arranger, each of whose
acceptance will not be unreasonably withheld or delayed.  The sum of the increases in the Revolving
Commitments of the existing Lenders pursuant to this subsection (b) plus
the Revolving Commitments of the Additional Lenders shall not in the aggregate
exceed the unsubscribed amount of the Additional Commitment Amount.


 


(c)           An
increase in the aggregate amount of the Revolving Commitments pursuant to this
Section 2.23 shall become effective upon the receipt by the Administrative
Agent of an agreement in form and substance satisfactory to the Administrative
Agent signed by the Borrower, by each Additional Lender and by each other
Lender whose Revolving Commitment is to be increased, setting forth the new
Revolving Commitments of such Lenders and setting forth the agreement of each
Additional Lender to become a party to this Agreement and to be bound by all
the terms and provisions hereof, together with such evidence of appropriate
corporate authorization on the part of the Borrower with respect to the
increase in the Revolving Commitments and such opinions of counsel for the
Borrower with respect to the increase in the Revolving Commitments as the
Administrative Agent may reasonably request.


 


(d)           Upon
the acceptance of any such agreement by the Administrative Agent, the Aggregate
Revolving Commitment Amount shall automatically be increased by the amount of
the Revolving Commitments added through such agreement and Annex I shall
automatically be deemed amended to reflect the Revolving Commitments of all
Lenders after giving effect to the addition of such Revolving Commitments.


 


(e)           Upon
any increase in the aggregate amount of the Revolving Commitments pursuant to
this Section 2.23 that is not pro rata among all Lenders, (x) within five
Business Days, in the case of any Base Rate Loans then outstanding, and at the
end of the then current Interest Period with respect thereto, in the case of
any Eurodollar Loans then outstanding, the Borrower shall prepay such Loans in
their entirety and, to the extent the Borrower elects to do so and subject to
the conditions specified in Article 3, the Borrower shall reborrow Loans
from the Lenders in proportion to their respective Revolving Commitments after
giving effect to such increase, until such time as all outstanding Loans are
held by the Lenders in such proportion and (y) effective upon such increase,
the amount of the participations held by each Lender in each Letter of Credit
then outstanding shall be adjusted such that, after giving effect to such


 


45

















 


adjustments,
the Lenders shall hold participations in each such Letter of Credit in the
proportion its respective Revolving Commitment bears to the aggregate Revolving
Commitments after giving effect to such increase.


 


Section 2.24.        Mitigation of Obligations.  If any Lender requests compensation
under Section 2.18, or 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 2.20, 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 sole judgment of
such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable under Section 2.18 or Section 2.20, as
the case may be, in the future and (ii) 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 costs and expenses incurred by any Lender in connection with such
designation or assignment.


 


Section 2.25.        Replacement of Lenders.  If any Lender requests compensation under Section 2.18,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority of the account of any Lender pursuant to Section 2.20,
or if any Lender defaults in its obligation to fund Loans hereunder, 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 set forth in Section 10.4(b)
all its interests, rights and obligations under this Agreement to an assignee
that shall assume such obligations (which assignee may be another Lender); provided,
that (i) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal amount of all Loans owed to it, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (in the
case of such outstanding principal and accrued interest) and from the Borrower
(in the case of all other amounts) and (iii) in the case of a claim for
compensation under Section 2.18 or payments required to be made
pursuant to Section 2.20, such assignment will result in a
reduction in such compensation or payments. 
A Lender shall not be required to make any such assignment and
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.


 


ARTICLE 3



CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT


 


Section 3.1.           Conditions To Effectiveness.  The obligations of the Lenders (including
the Swingline Lender) to make Loans and the obligation of the Issuing Bank to
issue any Letter of Credit hereunder shall not become effective until the date
on which each of the following conditions is satisfied (or waived in accordance
with Section 10.2).


 


46






















 


(a)           The Administrative Agent shall have received
all fees and other amounts due and payable on or prior to the Closing Date,
including reimbursement or payment of all out-of-pocket expenses (including
reasonable fees, charges and disbursements of counsel to the Administrative
Agent) required to be reimbursed or paid by the Borrower hereunder, under any
other Loan Document and under any agreement with the Administrative Agent or
Lead Arranger.


 


(b)           The Administrative Agent (or its counsel)
shall have received the following:


 


(i)            a
counterpart of this Agreement signed by or on behalf of each party hereto or
written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement;


 


(ii)           duly
executed Revolving Credit Notes payable to such Lender and the Swingline Note
payable to the Swingline Lender;


 


(iii)          the
Parent Guaranty Agreement duly executed by the Parent Guarantor;


 


(iv)          the
Subsidiary Guaranty Agreement duly executed by each Material Subsidiary that
is a Domestic Subsidiary;


 


(v)           the
Pledge Agreements duly executed by each owner of any interest in any Material Subsidiary and such
documents and instruments as may be necessary to give a first priority
perfected security interest in the insterests pledged therein to the
Administrative Agent for the benefit of the Lenders;


 


(vi)          copies
of duly executed payoff letters, in form and substance satisfactory to
Administrative Agent, executed by each of the Existing Lenders or the agent
thereof;


 


(vii)         a
certificate of the Secretary or Assistant Secretary of each Loan Party,
attaching and certifying copies of its bylaws and of the resolutions of its
boards of directors, or partnership agreement or limited liability company
agreement, or comparable organizational documents and authorizations,
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party and certifying the name, title and true signature of each
officer of such Loan Party executing the Loan Documents to which it is a party;


 


(viii)        certified
copies of the articles or certificate of incorporation, certificate of
organization or limited partnership, or other registered organizational documents
of each Loan Party, together with certificates of good standing or existence,
as may be available from the Secretary of State of the jurisdiction of
organization of such Loan Party and each other jurisdiction where


 


47

















 


such Loan
Party is required to be qualified to do business as a foreign corporation;


 


(ix)           a
favorable written opinion of  Walter
W. Bardenwerper, General Counsel of the Borrower, addressed to the
Administrative Agent and each of the Lenders, and covering such matters
relating to the Loan Parties, the Loan Documents and the transactions
contemplated therein as the Administrative Agent or the Required Lenders shall
reasonably request;


 


(x)            a
certificate, dated the Closing Date and signed by a Responsible Officer,
certifying that (x) no Default or Event of Default exists, (y) all
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct  and (z)
since the date of the financial statements of the Borrower described in Section
4.4, there shall have been no change which has had or could reasonably be
expected to have a Material Adverse Effect;


 


(xi)           a
duly executed Notice of Borrowing;


 


(xii)          a
duly executed funds disbursement agreement, together with a report setting
forth the sources and uses of the proceeds hereof


 


(xiii)         certified
copies of all consents, approvals, authorizations, registrations and filings
and orders required or advisable to be made or obtained under any Requirement
of Law, or by any Contractual Obligation of each Loan Party, in connection with
the execution, delivery, performance, validity and enforceability of the Loan
Documents or any of the transactions contemplated thereby, and such consents,
approvals, authorizations, registrations, filings and orders shall be in full
force and effect and all applicable waiting periods shall have expired, and no
investigation or inquiry by any governmental authority regarding the Credit
Facility or any transaction being financed with the proceeds thereof shall be
ongoing;


 


(xiv)        certified
copies of all agreements, indentures or notes governing the terms of any
Material Indebtedness and all other material agreements, documents and
instruments to which any Loan Party or any of its assets are bound;


 


(xv)         certificates
of insurance issued on behalf of insurers of the Borrower and all Subsidiary
Loan Parties or other guarantors, describing in reasonable detail the types and
amounts of insurance (property and liability) maintained by the Borrower and all
Subsidiary Loan Parties or other guarantors, naming the Administrative Agent as
additional insured.


 


Section
3.2.           Each Credit Event.  The obligation of
each Lender to make a Loan on the occasion of any Borrowing and of the Issuing
Bank to issue, amend, renew or extend any Letter of Credit is subject to the
satisfaction of the following conditions:


 


48

















 


(a)           at the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default or Event of Default shall
exist; and


 


(b)           at the time of and immediately after giving
effect to such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, all representations and warranties of
each Loan Party set forth in the Loan Documents shall be true and correct on
and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, in each case before and after
giving effect thereto; and


 


(c)           since the date of the financial statements
of the Borrower described in Section 4.4, there shall have been no
change which has had or could reasonably be expected to have a Material Adverse
Effect; and


 


(d)           the Borrower shall have delivered the
required Notice of Borrowing; and


 


(e)           the Administrative Agent shall have received
such other docu­ments, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request, all in
form and substance reasonably satisfactory to the Administrative Agent or the
Required Lenders.


 


Each Borrowing
and each issuance, amendment, extension or renewal of any Letter of Credit
shall be deemed to constitute a representation and warranty by the Borrower on
the date thereof as to the matters specified in paragraphs (a), (b) and (c) of
this Section 3.2.


 


Section
3.3.           Delivery of
Documents.  All of the Loan
Documents, certificates, legal opinions and other documents and papers referred
to in this Article 3, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall
be in form and substance satisfactory in all respects to the Administrative
Agent.


 


ARTICLE 4



REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and
warrants to the Administrative Agent and each Lender as follows:


 


Section
4.1.           Existence; Power.  Each member of the Consolidated Group (i) is
duly organized, validly existing and in good standing as a corporation,
partnership or limited liability company under the laws of the jurisdiction of
its organization, (ii) has all requisite power and authority to carry on its business
as now conducted, and (iii) is duly qualified to do business, and is in
good standing, in each jurisdiction where such qualification is required,
except where a failure to be so qualified could not reasonably be expected to
result in a Material Adverse Effect.


 


49

















 


Section
4.2.           Organizational
Power; Authorization.  The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party’s organizational powers and have
been duly authorized by all necessary organizational, and if required,
shareholder, partner or member, action. 
This Agreement has been duly executed and delivered by the Borrower and  constitutes, and each other Loan Document
to which any Loan Party is a party, when executed and delivered by such Loan
Party, will constitute, valid and binding obligations of the Borrower, each
Subsidiary Loan Party or such other Loan Party (as the case may be),
enforceable against it in accordance with their respective terms, except as may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors’ rights generally and by
general principles of equity.


 


Section
4.3.           Governmental Approvals;
No Conflicts.  The execution,
delivery and performance by the Borrower of this Agreement, and by each Loan
Party of the other Loan Documents to which it is a party (a) do not require any
consent or approval of, registration or filing with, or any action by, any
Governmental Authority, except those as have been obtained or made and are in
full force and effect, (b) will not violate any Requirements of Law applicable
to any member of the Consolidated Group or any judgment, order or ruling of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding on any member of the
Consolidated Group or any of its assets or give rise to a right thereunder to
require any payment to be made by any member of the Consolidated Group and
which could reasonably be expected to have a Material Adverse Effect and (d)
will not result in the creation or imposition of any Lien on any asset of any
member of the Consolidated Group, except Liens (if any) created under the Loan
Documents.


 


Section
4.4.           Financial Statements.  The Borrower has furnished to each Lender
(i) the audited consolidated and consolidating balance sheet of the
Consolidated Group as of June 30,
2003 and the related consolidated and consolidating statements of
income, shareholders’ equity and cash flows for the Fiscal Year then ended
prepared by PricewaterhouseCoopers and (ii) the unaudited consolidated
balance sheet of the Consolidated Group as of March 31, 2004, and the related unaudited consolidated
statements of income and cash flows for the Fiscal Quarter and year-to-date
period then ending, certified by a Responsible Officer.  Such financial statements fairly and
accurately present the consolidated and consolidating financial condition of
the Consolidated Group as of such dates and the consolidated and consolidating
results of operations for such periods in conformity with GAAP consistently
applied, subject to year end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii).  Since June 30, 2003, there have been no changes with respect to the
Consolidated Group which have had or could  reasonably
be expected to have, singly or in the aggregate, a Material Adverse Effect.


 


Section
4.5.           Litigation and Environmental Matters.


 


(a)           No litigation, investigation or proceeding
of or before any arbitra­tors or Governmental Authorities is pending against
or, to the knowledge of the Loan Parties, threatened against or affecting any
member of the Consolidated Group (i) as to which there is a reasonable


 


50

















 


possibility of an adverse determination that could reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect or (ii) which in any manner draws into question the validity or
enforceability of this Agreement or any other Loan Document.


 


(b)           Except for the matters set forth on Schedule
4.5, no member of the Consolidated Group (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with
respect to any Environmental Liability or (iv) knows of any basis for any
Environmental Liability.


 


Section
4.6.           Compliance with Laws
and Agreements.  Each member of
the Consolidated Group is in compliance with (a) all Requirements of Law and
all judgments, decrees and orders of any Governmental Authority and (b) all
indentures, agreements or other instruments binding upon it or its properties.


 


Section
4.7.           Investment Company
Act, Etc.  No member of the
Consolidated Group is (a) an “investment company” or is “controlled” by an
“investment company”, as such terms are defined in, or subject to regulation
under, the Investment Company Act of 1940, as amended, (b) a “holding company”
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt or requiring any approval
or consent from or registration or filing with, any Governmental Authority in
connection therewith.


 


Section
4.8.           Taxes.  Each member of the Consolidated Group and
each other Person for whose taxes any member of the Consolidated Group could
become liable for have timely filed or caused to be filed all Federal income
tax returns and all other material tax returns that are required to be filed by
them, and have paid all taxes shown to be due and payable on such returns or on
any assessments made against it or its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental
Authority, except where the same are currently being contested in good faith by
appropriate proceedings and for which the applicable member of the Consolidated
Group has set aside on its books adequate reserves in accordance with
GAAP.  The charges, accruals and
reserves on the books of each member of the Consolidated Group in respect of
such taxes are adequate, and no tax liabilities that could be materially in
excess of the amount so provided are anticipated.


 


Section
4.9.           Margin Regulations.  None of the proceeds of any of the Loans or
Letters of Credit will be used, directly or indirectly, for “purchasing” or
“carrying” any “margin stock” within the respective meanings of each of such
terms under Regulation U of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect or for any purpose that
violates the provisions of the Regulation U. 
No member of the Consolidated Group is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose
of purchasing or carrying “margin stock.”


 


51

















 


Section
4.10.        ERISA.  No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect.  The present value of all accumulated benefit obligations under
each Plan (based on the assumptions used for purposes of Statement of Financial
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed the fair market value of the assets
of such Plan, and the present value of all accumulated benefit obligations of
all underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed the fair market value of
the assets of all such underfunded Plans.


 


Section
4.11.        Ownership
of Property.


 


(a)           Each member of the Consolidated Group has
good title to, or valid leasehold interests in, all of its real and personal
property material to the operation of its business, including all such
properties reflected in the most recent audited consolidated balance sheet of
the Consolidated Group referred to in Section 4.4 or purported to have been
acquired by any member of the Consolidated Group after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement.  All leases that individually or in the aggregate are material to
the business or operations of any member of the Consolidated Group are valid
and subsisting and are in full force.


 


(b)           Each member of the Consolidated Group owns,
or is licensed, or otherwise has the right, to use, all patents, trademarks,
service marks, trade names, copyrights and other intellectual property material
to its business, free from burdensome restrictions or infringements, and the
use thereof by any member of the Consolidated Group does not infringe in any
material respect on the rights of any other Person.


 


(c)           The properties of each member of the
Consolidated Group are insured with financially sound and reputable insurance
companies which are not Affiliates of any member of the Consolidated Group, in
such amounts with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar
properties in localities where any member of the Consolidated Group operates.


 


Section
4.12.        Disclosure.  Each member of the Consolidated Group has
disclosed to the Lenders all agreements, instruments, and corporate or other
restrictions to which each member of the Consolidated Group is subject, and all
other matters known to any of them, that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.  Neither the Executive Summary nor any of the
reports (including without limitation all reports that any member of the
Consolidated Group is required to file, if any, with the Securities and
Exchange Commission), financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation or syndication of this Agreement or
any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material


 


52

















 


misstatement of fact or omits to state any material fact necessary to
make the statements therein, taken as a whole, in light of the circumstances
under which they were made, not misleading.


 


Section
4.13.        Labor Relations.  There are no strikes, lockouts or other
material labor disputes or grievances against any member of the Consolidated
Group, or, to the knowledge of the Loan Parties, threatened against or
affecting any member of the Consolidated Group, and no significant unfair labor
practice, charges or grievances are pending against any member of the
Consolidated Group, or to the knowledge of the Loan Parties, threatened against
any of them before any Governmental Authority. 
All payments due from any member of the Consolidated Group pursuant to
the provisions of any collective bargaining agreement have been paid or accrued
as a liability on the books of the applicable member of the Consolidated Group,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


Section
4.14.        Subsidiaries.  Schedule 4.14 sets forth the name of,
the ownership interest of the Borrower in, the jurisdiction of incorporation or
organization of, and the type of, each Subsidiary and identifies each Subsidiary
that is a Subsidiary Loan Party, in each case as of the Closing Date.  The Borrower is a wholly owned Subsidiary of
the Parent Guarantor.


 


Section
4.15.        Insolvency.  After giving effect to the execution and
delivery of the Loan Documents, the making of the Loans under this Agreement,
no member of the Consolidated Group will be “insolvent,” within the meaning of
such term as defined in § 101 of Title 11 of the United States Code, as amended
from time to time, or be unable to pay its debts generally as such debts become
due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.


 


Section
4.16.        OFAC.  No Loan Party (i) is a person whose property
or interest in property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings or
transactions prohibited by Section 2 of such executive order, or is otherwise
associated with any such person in any manner violative of Section 2, or (iii)
is a person on the list of Specially Designated Nationals and Blocked Persons
or subject to the limitations or prohibitions under any other U.S. Department
of Treasury’s Office of Foreign Assets Control regulation or executive order.


 


Section
4.17.        Patriot Act.  Each member of the Consolidated Group is in
compliance, in all material respects, with the (i) the Trading with the
Enemy Act, as amended, and each of the foreign assets control regulations of
the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) and any other enabling legislation or executive order relating
thereto, and (ii) the Uniting And Strengthening America By Providing
Appropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Act
of 2001).  No part of the proceeds of
the Loans will be used, directly or indirectly, for any payments to any
governmental official or employee, political party, official of a political
party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any


 


53

















 


improper advantage, in violation of the United States Foreign Corrupt
Practices Act of 1977, as amended.


 


ARTICLE 5



AFFIRMATIVE COVENANTS


 


The Borrower covenants and
agrees that so long as any Lender has a Commitment hereunder or any Obligation
remains unpaid or outstanding:


 


Section
5.1.           Financial Statements
and Other Information.  The
Borrower will deliver to the Administrative Agent and each Lender:


 


(a)           as soon as available and in any event within
90 days after the end of each Fiscal Year of Borrower, a copy of the annual
audited report for such Fiscal Year for the Consolidated Group, containing a
consolidated and consolidating balance sheet of the Consolidated Group as of
the end of such Fiscal Year and the related consolidated and consolidating statements
of income, stockholders’ equity and cash flows (together with all footnotes
thereto) of the Consolidated Group for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous Fiscal Year, all in
reasonable detail and reported on, and certified by, PricewaterhouseCoopers or
other independent public accountants of nationally recognized standing (without
a “going concern” or like qualification, exception or explanation and without
any qualification or exception as to scope of such audit) to the effect that
such financial statements present fairly in all material respects the financial
condition and the results of operations of the Consolidated Group for such
Fiscal Year on a consolidated and consolidating basis in accordance with GAAP
and that the examination by such accountants in connection with such
consolidated and consolidating financial statements has been made in accordance
with generally accepted auditing standards;


 


(b)           as soon as available and in any event within
45 days after the end of each Fiscal Quarter of the Borrower, an unaudited
consolidated and consolidating balance sheet of the Consolidated Group as of
the end of such Fiscal Quarter and the related unaudited consolidated and
consolidating statements of in­come and cash flows of the Consolidated Group
for such Fiscal Quarter and the then elapsed portion of such Fiscal Year,
setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower’s previous
Fiscal Year;


 


(c)           concurrently with the delivery of the
financial statements referred to in clauses (a) and (b) above, a Compliance
Certificate signed by the principal executive officer and the principal
financial officer of the Borrower;


 


(d)           concurrently with the delivery of the
financial statements referred to in clause (a) above, a certificate of the
accounting firm that reported on such financial statements stating whether they
obtained any knowledge during the course of their examination of such financial
statements of any Default or Event of Default (which certificate may be limited
to the extent required by accounting rules or guidelines);


 


54

















 


(e)           promptly after the same become publicly available,
copies of all periodic and other reports, proxy statements and other materials
filed with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all functions of said Commission, or with any
national securities exchange, or distributed by any member of the Consolidated
Group to its shareholders generally, as the case may be; and


 


(f)            promptly following any request therefor,
such other information regarding the results of operations, business affairs
and financial condition of any member of the Consolidated Group as the
Administrative Agent or any Lender may reasonably request.


 


Section
5.2.           Notices of Material
Events.  The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of the
following:


 


(a)           the occurrence of any Default or Event of
Default;


 


(b)           the filing or commencement of any action,
suit or proceeding by or before any arbitrator or Governmental Authority
against or, to the knowledge of the Borrower, affecting any member of the
Consolidated Group which, if adversely determined, could reasonably be expected
to result in a Material Adverse Effect;


 


(c)           the occurrence of any event or any other
development by which the any member of the Consolidated Group (i) fails to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability, (iii) receives notice of any
claim with respect to any Environmental Liability, or (iv) becomes aware of any
basis for any Environmental Liability and in each of the preceding clauses,
which individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect;


 


(d)           the occurrence of any ERISA Event that
alone, or together with any other ERISA Events that have occurred results in,
or could reasonably be expected to result in, a Material Adverse Effect;


 


(e)           the occurrence of any default or event of
default, or the receipt by any member of the Consolidated Group of any written
notice of an alleged default or event of default, respect of any Material
Indebtedness; and


 


(f)            any other development that results in, or
could reasonably be expected to result in, a Material Adverse Effect.


 


(g)           Each notice delivered under this Section
shall be accompanied by a written statement of a Responsible Officer setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.


 


Section
5.3.           Existence; Conduct
of Business.  The Borrower will
cause each member of the Consolidated Group to do or cause to be done all
things necessary to preserve, renew and maintain in full force and effect its
legal existence and its respective rights, licenses, permits,


 


55

















 


privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business and will continue to engage in the same
business as presently conducted or such other businesses that are reasonably
related thereto; provided, that nothing in this Section shall prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
7.3.


 


Section
5.4.           Compliance with
Laws, Etc.   The Borrower will
cause each member of the Consolidated Group to comply with all laws, rules,
regulations and requirements of any Governmental Authority applicable to its
business and properties, including without limitation, all Environmental Laws,
ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.


 


Section
5.5.           Payment of
Obligations.  The Borrower will
cause each member of the Consolidated Group to pay and discharge at or before
maturity, all of its obligations and liabilities (including without limitation
all tax liabilities and claims that could result in a statutory Lien) before
the same shall become delinquent or in default, except where (a) the validity
or amount thereof is being contested in good faith by appropriate proceedings,
(b) the applicable member of the Consolidated Group has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.


 


Section
5.6.           Books and Records.  The Borrower will cause each member of the
Consolidated Group to keep proper  books
of record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of the
Consolidated Group in conformity with GAAP.


 


Section
5.7.           Visitation, Inspection,
Etc.  The Borrower will cause each member
of the Consolidated Group to permit any representative of the Administrative
Agent or any Lender, to visit and inspect its properties, to examine its books
and records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its
independent certified public accountants, all at such reasonable times and as
often as the Administrative Agent or any Lender may reasonably request after
reasonable prior notice to the Borrower or other member of the Consolidated
Group; provided, however, if an Event of
Default has occurred and is continuing, no prior notice shall be required.


 


Section
5.8.           Maintenance of
Properties;  Insurance.  The Borrower will cause each member of the
Consolidated Group to (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the
kinds customarily insured against by companies in the same or similar
businesses operating in the same or similar locations, and (c) at all times
shall name Administrative Agent as additional insured on all general liability
policies of the members of the Consolidated Group.


 


56

















 


Section
5.9.           Use of Proceeds and
Letters of Credit.  The Borrower
will use the proceeds of all Loans to refinance existing debt on the Closing
Date, to finance working capital needs, fund permitted acquisitions, make
Permitted Investments and stock repurchases, and for other general corporate
purposes of the Borrower and its Subsidiaries. 
No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X.  All Letters of Credit will be used
for general corporate purposes.


 


Section
5.10.        Additional
Subsidiaries.


 


(a)           If any Domestic Subsidiary becomes a
Material Subsidiary after the Closing Date, or any Material Subsidiary is
acquired or formed after the Closing Date, the Borrower will, within ten (10)
Business Days after any such Subsidiary becomes a Material Subsidiary, or such
Material Subsidiary is acquired or formed, notify the Administrative Agent and
the Lenders thereof and will (i) cause such Material Subsidiary, if it is a
Domestic Subsidiary, to become a Subsidiary Loan Party and deliver with the
Subsidiary Loan Guaranty, supporting resolutions, incumbency certificates,
corporate formation and organizational documentation and opinions of counsel as
the Agent may reasonably request, and (ii) deliver stock certificates and
related pledge agreements or pledge joinder agreements evidencing the pledge of
100% of the Capital Stock of such Domestic Subsidiary, together with undated
stock or other transfer powers executed in blank.


 


(b)           If, at any time, the aggregate revenue or
assets (on a non-consolidated basis) of the Borrower and those Subsidiaries
that are then Subsidiary Loan Parties are less than the Aggregate Subsidiary
Threshold, then the Borrower shall cause one or more other Subsidiaries to
become additional Subsidiary Loan Parties, as provided in this
Section 5.10, within ten (10) Business Days after such revenues or assets
become less than the Aggregate Subsidiary Threshold so that after including the
revenue or assets of any such additional Subsidiary Loan Parties, the aggregate
revenue or assets (on a non-consolidated basis) of the Borrower and all such
Subsidiary Loan Parties would equal or exceed the Aggregate Subsidiary
Threshold.


 


(c)           If at any time, any Foreign Subsidiary of
the Borrower becomes a Material 
Subsidiary of the Borrower, the Borrower shall promptly (i) notify the
Administrative Agent thereof, and shall promptly (and in any event within 30
days) deliver stock certificates and related pledge agreements or pledge
joinder agreements evidencing the pledge of 66%
of the Voting Stock of such Foreign Subsidiary to the extent such Voting Stock
is owned by the Borrower or a Domestic Subsidiary, in each case together with
undated stock or other transfer powers executed in blank, and (ii) deliver with
such pledge agreements or pledge joinder agreements supporting resolutions,
incumbency certificates, corporate formation and organizational documentation
and opinions of counsel as the Administrative Agent may reasonably request.


 


(d)           The Borrower may elect at any time to have
any Subsidiary become an additional Subsidiary Loan Party as provided in this
Section 5.10.


 


57

















 


(e)           Upon the occurrence and during the
continuation of any Event of Default, if the Required Lenders so direct, the
Borrower shall (i) cause all of its Subsidiaries to become additional
Subsidiary Loan Parties, as provided in this Section 5.10, within ten (10)
Business Days after the Borrower’s receipt of written confirmation of such
direction from the Administrative Agent.


 


(f)            A Subsidiary shall become an additional
Subsidiary Loan Party by executing and delivering to the Administrative Agent a
Subsidiary Guaranty Supplement, accompanied by (i) all other Loan
Documents related thereto, (ii) certified copies of certificates or
articles of incorporation or organization, by-laws, membership operating
agreements, and other organizational documents, appropriate authorizing
resolutions of the board of directors of such Subsidiaries, and opinions of
counsel comparable to those delivered pursuant to Section 3.1, and (iii) such
other documents as the Administrative Agent may reasonably request.  No Subsidiary that becomes a Subsidiary Loan
Party shall thereafter cease to be a Subsidiary Loan Party or be entitled to be
released or discharged from its obligations under the Subsidiary Guaranty
Agreement.


 


ARTICLE 6



FINANCIAL COVENANTS


 


The Borrower covenants and
agrees that so long as any Lender has a Commitment hereunder or any Obligation
remains unpaid or outstanding:


 


Section
6.1.           Leverage Ratio.  The Borrower shall maintain at all times a
Leverage Ratio of not greater than 2.00:1.00.


 


Section
6.2.           Fixed Charge
Coverage Ratio.  The Borrower
will maintain, as of the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ending September 30, 2004,
a Fixed Charge Coverage  Ratio of
not less than 1.75:1.00:


 


Section
6.3.           Minimum Asset
Coverage Ratio.  The Borrower
shall at all times maintain a Minimum Asset Coverage Ratio of not less than
1.50:1.00.


 


ARTICLE 7



NEGATIVE COVENANTS


 


The Borrower covenants and
agrees that so long as any Lender has a Commitment hereunder or any Obligation
remains outstanding:


 


Section
7.1.           Indebtedness and
Preferred Equity.  The Borrower
will not cause or permit any member of the Consolidated Group to create, incur,
assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness created pursuant to the Loan
Documents;


 


58

















 


(b)           Indebtedness of the Consolidated Group
existing on the date hereof and set forth on Schedule 7.1 and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (immediately prior to giving effect to
such extension, renewal or replacement) or shorten the maturity or the weighted
average life thereof;


 


(c)           Indebtedness of any member of the
Consolidated Group incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations, and any Indebtedness assumed in connection with the acquisition of
any such assets or secured by a Lien on any such assets prior to the
acquisition thereof; provided, that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvements or extensions, renewals, and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately
prior to giving effect to such extension, renewal or replacement) or shorten
the maturity or the weighted average life thereof; provided further, that the
aggregate principal amount of such Indebtedness does not exceed $2,000,000 at
any time outstanding;


 


(d)           Indebtedness of the Borrower owing to any
Subsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary;
provided, that any such Indebtedness that is owed to a Subsidiary that is not a
Subsidiary Loan Party shall be subject to Section 7.4;


 


(e)           Guarantees by the Borrower of Indebtedness
of any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any
other Subsidiary; provided, that Guarantees by any Loan Party of Indebtedness
of any Subsidiary that is not a Subsidiary Loan Party shall be subject to
Section 7.4;


 


(f)            Indebtedness of any Person which becomes a
Subsidiary after the date of this Agreement; provided, that (i) such
Indebtedness exists at the time that such Person becomes a Subsidiary and is
not created in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the aggregate principal amount of such Indebtedness
permitted hereunder shall not exceed $5,000,000 outstanding at any time;


 


(g)           Indebtedness in respect of Hedging
Obligations permitted by Section 7.10;


 


(h)           Indebtedness by the Borrower in respect of
any guaranty of the Employee Stock Loans not to exceed an aggregate principal
amount of $360,000; and


 


(i)            other unsecured Indebtedness of the Borrower
or its Subsidiaries in an aggregate principal amount not to exceed $15,000,000
at any time outstanding.


 


The Borrower will not cause or
permit any member of the Consolidated Group to issue any preferred stock or
other preferred equity interests that (i) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise, (ii) is or may become
redeemable or repurchaseable by any member of the Consolidated Group at the
option of the holder thereof, in whole or in part or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or preferred
stock or any other preferred equity interests described in this


 


59

















 


paragraph, on or prior to, in
the case of clause (i), (ii) or (iii), the first anniversary of the Revolving
Commitment Termination Date.


 


Section
7.2.           Negative Pledge.  The Borrower will not cause or permit any
member of the Consolidated Group to create, incur, assume or suffer to exist
any Lien on any of its assets or property now owned or hereafter acquired or,
except:


 


(a)           Permitted Encumbrances;


 


(b)           any Liens created pursuant to the Loan
Documents;


 


(c)           any Liens on any property or asset of any
member of the Consolidated Group existing on the Closing Date set forth on
Schedule 7.2; provided, that such Lien shall not apply to any other property or
asset of such member;


 


(d)           purchase money Liens upon or in any fixed or
capital assets to secure the purchase price or the cost of construction or
improvement of such fixed or capital assets or to secure Indebtedness incurred
solely for the purpose of financing the acquisition, construction or
improvement of such fixed or capital assets (including Liens securing  any Capital Lease Obligations); provided,
that (i) such Lien secures Indebtedness permitted by Section 7.1(c), (ii) such
Lien attaches to such asset concurrently or within 90 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets; and


 


(e)           extensions, renewals, or replacements of any
Lien referred to in paragraphs (a) through (c) of this Section; provided, that
the principal amount of the Indebtedness secured thereby is not increased and
that any such extension, renewal or replacement is limited to the assets
originally encumbered thereby.


 


Section
7.3.           Fundamental Changes.


 


(a)           The Borrower will not cause or permit any
member of the Consolidated Group to merge into or consolidate into any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, lease, transfer or otherwise dispose of (in a single transaction or a
series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of the
stock of any of its Subsidiaries  (in
each case, whether now owned or hereafter acquired)  or liquidate or dissolve; provided, that if at the time
thereof and immediately after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing (i) the Borrower or any
Subsidiary may merge with a Person if the Borrower (or such Subsidiary if the
Borrower is not a party to such merger) is the surviving Person, (ii) any
Subsidiary may merge into another Subsidiary; provided, that if any party to
such merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the
surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to the Borrower or to a
Subsidiary Loan Party and (iv) any Subsidiary (other than a Subsidiary Loan
Party) may liquidate or dissolve if the Borrower determines in good faith that


 


60

















 


such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; provided, that
any such merger involving a Person that is not a wholly-owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted
by Section 7.4.


 


(b)           The Borrower will not cause or permit any
member of the Consolidated Group to engage in any business other than
businesses of the type conducted by the Consolidated Group on the date hereof
and businesses reasonably related thereto.


 


Section
7.4.           Investments, Loans,
Etc.  The Borrower will not
cause or permit any member of the Consolidated Group to purchase, hold or
acquire (including pursuant to any merger with any Person that was not a
wholly-owned Subsidiary prior to such merger), any common stock, evidence of
indebtedness or other securities (including any option, warrant, or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person (all of the foregoing
being collectively called “Investments”), or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any
other Person that constitute a business unit, or create or form any Subsidiary,
except:


 


(a)           Investments (other than Permitted
Investments) existing on the date hereof and set forth on Schedule 7.4
(including Investments in Subsidiaries) and extensions and renewals thereof;


 


(b)           Permitted Investments;


 


(c)           Guarantees constituting Indebtedness
permitted by Section 7.1; provided, that the aggregate principal amount of Indebtedness
of Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by any
Loan Party shall be subject to the limitation set forth in clause (d) hereof;


 


(d)           Investments made by the Borrower in or to
any Subsidiary and by any Subsidiary to the Borrower or in or to another
Subsidiary; provided, that the aggregate amount of Investments by Loan Parties
in or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary that
is not a Subsidiary Loan Party (including all such Investments and Guarantees
existing on the Closing Date) shall not exceed $10,000,000  at any time outstanding;


 


(e)           loans or advances to employees, officers or
directors of the Borrower or any Subsidiary in the ordinary course of business
for travel, relocation and related expenses; provided, however, that the
aggregate amount of all such loans and advances does not exceed $500,000 at any time;


 


(f)            Hedging Transactions permitted by Section
7.10;


 


(g)           Employee Stock Loans in an aggregate
principal amount not to exceed $360,000 at any time; and


 


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(h)           Other
Investments which in the aggregate do not exceed $15,000,000 in any Fiscal Year.


 


Section
7.5.           Restricted Payments.  The
Borrower will not cause or permit any member of the Consolidated Group to
declare or make, or agree to pay or make, directly or indirectly, any dividend
on any class of its stock, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
retirement, defeasance or other acquisition of, any shares of common stock or
Indebtedness subordinated to the Obligations of the Borrower or any Guarantee
thereof or any options, warrants, or other rights to purchase such common stock
or such Indebtedness, whether now or hereafter outstanding (each, a “Restricted
Payment”), except for (i) dividends payable by the Borrower solely in
shares of any class of its common stock, (ii) Restricted Payments made by any
Subsidiary to the Borrower or to another Subsidiary, on at least a pro rata
basis with any other shareholders if such Subsidiary is not wholly owned by the
Borrower and other wholly owned Subsidiaries and (iii) cash dividends and
distributions paid on the common stock of the Borrower; provided, that (A)
no Default or Event of Default has occurred and is continuing at the time such
dividend or distribution is paid or redemption is made, and (B) the aggregate amount of all such Restricted Payments made by
the Borrower in any Fiscal Year does not exceed 25%  of
Consolidated Net Income (if greater than $0) earned during the immediately
preceding Fiscal Year;


 


Section
7.6.           Sale of Assets.   The Borrower will not cause or permit any member of the
Consolidated Group to convey, sell, lease, assign, transfer or otherwise
dispose of, any of its assets, business or property, whether now owned or
hereafter acquired, or, in the case of any Subsidiary, issue or sell any shares
of such Subsidiary’s common stock to any Person other than the Borrower or any
wholly owned Subsidiary of the Borrower (or to qualify directors if required by
applicable law), except:


 


(a)           the sale or other disposition for fair
market value of obsolete or worn out property or other property not necessary
for operations disposed of in the ordinary course of business;


 


(b)           the sale of inventory and Permitted
Investments in the ordinary course of business; and


 


(c)           the sale or other disposition of such assets
in an aggregate amount not to exceed $5,000,000
in any Fiscal Year.


 


Section
7.7.           Transactions with
Affiliates.  The Borrower will
not cause or permit any member of the Consolidated Group to sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm’s-length basis
from unrelated third parties, (b) transactions between or among the Borrower
and any Subsidiary Loan Party not involving any other Affiliates, (c) any


 


62

















 


Restricted Payment permitted by Section 7.5 and (d)
provision of financial and other services and the sharing of know-how,
technology and office space in the ordinary course of business.


 


Section
7.8.           Restrictive
Agreements.  The Borrower will
not cause or permit any member of the Consolidated Group to directly or
indirectly, enter into, incur or permit to exist any agreement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or any
Subsidiary to create, incur or permit any Lien upon any of its assets or
properties, whether now owned or hereafter acquired, or (b) the ability of any
Subsidiary to pay dividends or other distributions with respect to its
common stock, to make or repay loans or advances to the Borrower or any other
Subsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiary
or to transfer any of its property or assets to the Borrower or any Subsidiary
of the Borrower; provided, that the foregoing shall not apply to
restrictions or conditions imposed by law or by this Agreement or any
other Loan Document.


 


Section
7.9.           Sale and Leaseback
Transactions.  The Borrower will
not cause or permit any member of the Consolidated Group to enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned
or hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred.


 


Section
7.10.        Hedging Transactions.  The Borrower will not cause or permit any
member of the Consolidated Group to enter into any Hedging Transaction, other
than Hedging Transactions entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities.  Solely for the avoidance of doubt, the
Borrower acknowledges that a Hedging Transaction entered into for speculative
purposes or of a speculative nature (which shall be deemed to include any
Hedging Transaction under which the Borrower or any of the Subsidiaries is or
may become obliged to make any payment (i) in connection with the purchase by
any third party of any common stock or any Indebtedness or (ii) as a result of
changes in the market value of any common stock or any Indebtedness) is not a
Hedging Transaction entered into in the ordinary course of business to hedge or
mitigate risks.


 


Section
7.11.        Amendment to Material
Documents.  The Borrower will
not cause or permit any member of the Consolidated Group to amend, modify or
waive any of its rights in a manner materially adverse to the Lenders under (a)
its certificate of incorporation, bylaws or other organizational documents or
(b) any material agreement, if any,
disclosed by the Borrower in filings with the U.S. Securities and Exchange
Commission.


 


Section
7.12.        Accounting Changes.  The Borrower will not cause or permit any
member of the Consolidated Group to make any significant change in accounting
treatment or reporting practices, except as required by GAAP, or change the
fiscal year of the Borrower or of any of its Subsidiaries, except to change the
fiscal year of a Subsidiary to conform its fiscal year to that of the Borrower.


 


63

















 


ARTICLE 8


EVENTS OF DEFAULT


 


Section
8.1.           Events of Default.  If any of the following events (each an “Event
of Default”) shall occur:


 


(a)           the Borrower shall fail to pay any principal
of any Loan or of any reimbursement obligation in respect of any LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment or otherwise; or


 


(b)           the Borrower shall fail to pay any interest
on any Loan or any fee or any other amount (other than an amount payable under
clause (a) of this Section 8.1) payable under this Agreement or any other Loan
Document, when and as the same shall become due and payable, and such failure
shall continue unremedied for a period of three (3) Business Days; or


 


(c)           any representation or warranty made or
deemed made by or on behalf of any member of the Consolidated Group in or in
connection with this Agreement or any other Loan Document (including the
Schedules attached thereto) and any amendments or modifications hereof or
waivers hereunder, or in any certificate, report, financial statement or other
document submitted to the Administrative Agent or the Lenders by any Loan Party
or any representative of any Loan Party pursuant to or in connection with this
Agreement or any other Loan Document shall prove to be incorrect  in any material respect when made or
deemed made or submitted; or


 


(d)           the Borrower shall fail to observe or
perform any covenant or agreement contained in Sections 5.1, 5.2, 5.3
(with respect to the Borrower’s existence) or Articles 6 or 7; or


 


(e)           one or more members of the Consolidated
Group shall fail to observe or perform any covenant or agreement contained in
this Agreement (other than those referred to in clauses (a), (b) and (d) above)
or any other Loan Document, and such failure shall remain unremedied for
30 days after the earlier of (i) any officer of the Borrower becomes
aware of such failure, or (ii) notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or


 


(f)            one or more members of the Consolidated
Group (whether as primary obligor or as guarantor or other surety) shall fail
to pay any principal of, or premium or interest on, any Material Indebtedness
that is outstanding, when and as the same shall become due and payable (whether
at scheduled maturity, required prepayment, acceleration, demand or otherwise),
and such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument evidencing or governing such
Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after
the applicable grace period, if any, specified in such agreement or instrument,
if the effect of such event or condition is to accelerate, or permit the
acceleration of,


 


64

















 


the maturity of such Indebtedness; or any such Indebtedness shall be
declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or
defeased, or any offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made, in each case prior to the stated maturity
thereof;


 


(g)           one or more members of the Consolidated
Group shall (i) commence a voluntary case or other proceeding or file any
petition seeking liquidation, reorganization or other relief under any federal,
state or foreign bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a custodian, trustee, receiver,
liquidator or other similar official of it or any substantial part of its
property, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (i) of
this Section, (iii) apply for or consent to the appointment of a custodian,
trustee, receiver, liquidator or other similar official for any member of the
Consolidated Group or for a substantial part of any its assets, (iv) file an
answer admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors, or
(vi) take any action for the purpose of effecting any of the foregoing; or


 


(h)           an involuntary proceeding shall be commenced
or an involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of any member of the Consolidated
Group or its debts, or any substantial part of its assets, under any federal,
state or foreign bankruptcy, insolvency or other similar law now or hereafter
in effect or (ii) the appointment of a custodian, trustee, receiver, liquidator
or other similar official for any member of the Consolidated Group or for a
substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of 60 days or an order or decree
approving or ordering any of the foregoing shall be entered; or


 


(i)            one or more members of the Consolidated
Group shall become generally unable to pay, shall admit in writing its
inability to pay, or shall fail generally to pay, its debts as they become due;
or


 


(j)            an ERISA Event shall have occurred that, in
the opinion of the Required Lenders, when taken together with other ERISA
Events that have occurred, could reasonably be expected to result in liability
to the members of the Consolidated Group in an aggregate amount exceeding
$5,000,000; or


 


(k)           any  judgment
or order for the payment of money in an amount greater than $10,000,000 in
excess of the Borrower’s insurance available therefor shall be rendered against
any member of the Consolidated Group, and either (i) enforcement proceedings
shall have been commenced by an creditor upon such judgment or order or (ii)
there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or


 


(l)            any  non-monetary  judgment or order shall be rendered
against any member of the Consolidated Group that could reasonably be expected
to have a Material


 


65

















 


Adverse Effect, and there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or


 


(m)          a Change in Control shall occur or exist;


 


(n)           any provision of the Parent Guaranty
Agreement or any Subsidiary Guaranty Agreement shall for any reason cease to be
valid and binding on, or enforceable against, the Parent Guarantor or any
Subsidiary Loan Party, or the Parent Guarantor or any Subsidiary Loan Party
shall so state in writing, or the Parent Guarantor or any Subsidiary Loan Party
shall seek to terminate its Parent Guaranty Agreement or Subsidiary Guaranty
Agreement, as the case may be; or


 


(o)           a Default or Event of Default under any
other Loan Document;


 


then, and in every such event
(other than an event with respect to the Borrower described in clause (f) or
(g) of this Section) and at any time thereafter during the continuance of such
event, the Administrative Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower, take any or all of the
following actions, at the same or different times:  (i) terminate the Commitments, whereupon the Commitment of
each Lender shall terminate immediately, (ii) declare the principal of and
any accrued interest on the Loans, and all other Obligations owing hereunder,
to be, whereupon the same shall become, due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, (iii) exercise all remedies contained in any
other Loan Document, and (iv) exercise any other remedies available at law or
in equity; and that, if an Event of Default specified in either clause (f) or
(g) shall occur, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest
thereon, and all fees, and all other Obligations shall automatically become due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower.


 


ARTICLE 9



THE ADMINISTRATIVE AGENT


 


Section
9.1.           Appointment of Administrative Agent.


 


(a)           Each Lender irrevocably appoints SunTrust
Bank as the Administrative Agent and authorizes it to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
under this Agreement and the other Loan Documents, together with all such
actions and powers that are reasonably incidental thereto.  The Administrative Agent may perform any of
its duties hereunder or under the other Loan Documents by or through any one or
more sub-agents or attorneys-in-fact appointed by the Administrative
Agent.  The Administrative Agent and any
such sub-agent or attorney-in-fact may perform any and all of its duties and
exercise its rights and powers through their respective Related Parties.  The exculpatory provisions set forth in this
Article shall apply to any such sub-


 


66

















 


agent or attorney-in-fact and the Related Parties of the Administrative
Agent, any such sub-agent and any such attorney-in-fact 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.


 


(b)           The Issuing Bank shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith until such time and except for so long as the
Administrative Agent may agree at the request of the Required Lenders to act
for the Issuing Bank with respect thereto; provided, that the Issuing Bank
shall have all the benefits and immunities (i) provided to the Administrative
Agent in this Article 9 with respect to any acts taken or omissions suffered by
the Issuing Bank in connection with Letters of Credit issued by it or proposed
to be issued by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term “Administrative
Agent” as used in this Article 9 included the Issuing Bank with respect to such
acts or omissions and (ii) as additionally provided in this Agreement with
respect to the Issuing Bank.


 


Section
9.2.           Nature of Duties of
Administrative Agent.  The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents.  Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default or an Event of Default
has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except those discretionary rights and powers expressly contemplated by the Loan
Documents that the Administrative Agent is required to exercise in writing by
the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 10.2),
and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not 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
Subsidiaries that is communicated to or obtained by 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, its sub-agents or attorneys-in-fact with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2) or in the absence of its own gross negligence or willful
misconduct.  The Administrative Agent
shall not be responsible for the negligence or misconduct of any sub-agents or
attorneys-in-fact selected by it with reasonable care.  The Administrative Agent shall not be deemed
to have knowledge of any Default or Event of Default unless and until written
notice thereof (which notice shall include an express reference to such event
being a “Default” or “Event of Default” hereunder) is given to the
Administrative Agent by the Borrower or any Lender, and 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 any 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 and conditions set forth in any Loan Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Loan Document
or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 3


 


67

















 


or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.  The Administrative Agent may consult with
legal counsel (including counsel for the Borrower) concerning all matters
pertaining to such duties.


 


Section
9.3.           Lack of Reliance on
the Administrative Agent.  Each
of the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender 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 of the Lenders, the Swingline
Lender and the Issuing Bank also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, continue to make
its own decisions in taking or not taking of any action under or based on this
Agreement, any related agreement or any document furnished hereunder or
thereunder.


 


Section
9.4.           Certain Rights of
the Administrative Agent.  If
the Administrative Agent shall request instructions from the Required Lenders
with respect to any action or actions (including the failure to act) in
connection with this Agreement, the Administrative Agent shall be entitled to
refrain from such act or taking such act, unless and until it shall have
received instructions from such Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining.  Without limiting the foregoing, no Lender
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder
in accordance with the instructions of the Required Lenders where required by
the terms of this Agreement.


 


Section
9.5.           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 believed by it to be genuine
and to have been signed, sent or made by the proper Person.  The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made
by the proper Person and shall not incur any liability for relying thereon.  The Administrative Agent may consult with
legal counsel (including counsel for the Borrower), independent public
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 such counsel,
accountants or experts.


 


Section
9.6.           The Administrative
Agent in its Individual Capacity. 
The bank serving as the Administrative Agent shall have the same rights
and powers under this Agreement and any other Loan Document in its capacity as
a Lender as any other Lender and may exercise or refrain from exercising the
same as though it were not the Administrative Agent; and the terms “Lenders”,
“Required Lenders”, “holders of Notes”, or any similar terms shall, unless the
context clearly otherwise indicates, include the Administrative Agent in its
individual capacity.  The bank acting as
the Administrative Agent and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of business with the Borrower or any
Subsidiary or Affiliate of the Borrower as if it were not the Administrative
Agent hereunder.


 


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Section
9.7.           Successor Administrative Agent.


 


(a)           The Administrative
Agent may resign at any time by giving notice thereof to the Lenders and the
Borrower.  Upon any such resignation,
the Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or
Event of Default shall exist at such time. 
If no successor Administrative Agent shall have been so appointed, and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined
capital and surplus of at least $500,000,000.


 


(b)           Upon the acceptance of its appointment as
the Administrative Agent hereunder by a successor, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents.  If within 45 days after written notice is
given of the retiring Administrative Agent’s resignation under this Section 9.7
no successor Administrative Agent shall have been appointed and shall have
accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent’s resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. 
After any retiring Administrative Agent’s resignation hereunder, the
provisions of this Article 9 shall continue in effect for the benefit of
such retiring Administrative Agent and its representatives and agents in
respect of any actions taken or not taken by any of them while it was serving
as the Administrative Agent.


 


Section
9.8.           Authorization to
Execute other Loan Documents. 
Each Lender hereby authorizes the Administrative Agent to execute on
behalf of all Lenders all Loan Documents other than this Agreement.


 


ARTICLE 10


 


MISCELLANEOUS


 


Section
10.1.        Notices.


 


(a)           Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications to any party herein to be effective shall be in writing
and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:


 


	
  To the
  Borrower:

  	
   

  	
  Watson Wyatt
  & Company

  



 


69

















 


	
   

  	
   

  	
  1717 H
  Street NW

  
	
   

  	
   

  	
  Washington,
  D.C. 20006

  
	
   

  	
   

  	
  Attention:  Treasurer

  
	
   

  	
   

  	
  Telecopy
  Number

  
	
   

  	
   

  	
   

  
	
  To the Administrative Agent

  	
   

  	
   

  
	
  or Swingline Lender:

  	
   

  	
  SunTrust Bank

  
	
   

  	
   

  	
  303 Peachtree Street, N. E.

  
	
   

  	
   

  	
  Atlanta, Georgia 30308

  
	
   

  	
   

  	
  Attention:

  
	
   

  	
   

  	
  Telecopy Number:

  
	
   

  	
   

  	
   

  
	
  With a copy
  to:

  	
   

  	
  SunTrust
  Bank

  
	
   

  	
   

  	
  Agency
  Services

  
	
   

  	
   

  	
  303
  Peachtree Street, N. E./ 25th Floor

  
	
   

  	
   

  	
  Atlanta,
  Georgia 30308

  
	
   

  	
   

  	
  Attention:  Mr. Greg Ponder

  
	
   

  	
   

  	
  Telecopy
  Number:  (404) 658-4906

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hunton &
  Williams LLP

  
	
   

  	
   

  	
  Riverfront
  Plaza - East Tower

  
	
   

  	
   

  	
  951 E. Byrd
  Street

  
	
   

  	
   

  	
  Richmond,
  Virginia

  
	
   

  	
   

  	
  Attention:  Douglas S. Granger

  
	
   

  	
   

  	
  Telecopy
  Number:  (404) 572-5100

  
	
   

  	
   

  	
   

  
	
  To the Issuing Bank:

  	
   

  	
  SunTrust Bank

  
	
   

  	
   

  	
  25 Park Place,
  N. E./Mail Code 3706

  
	
   

  	
   

  	
  Atlanta, Georgia 30303

  
	
   

  	
   

  	
  Attention: 
  John Conley

  
	
   

  	
   

  	
  Telecopy Number:  (404) 588-8129

  
	
   

  	
   

  	
   

  
	
  To the Swingline Lender:

  	
   

  	
  SunTrust Bank

  
	
   

  	
   

  	
  Agency Services

  
	
   

  	
   

  	
  303 Peachtree Street, N.E./25th
  Floor

  
	
   

  	
   

  	
  Atlanta, Georgia 30308

  
	
   

  	
   

  	
  Attention: 
  Mr. Greg
  Ponder

  
	
   

  	
   

  	
  Telecopy Number:  (404) 658-4906

  
	
   

  	
   

  	
   

  
	
  To any other Lender:

  	
   

  	
  the address set forth in the Administrative
  Questionnaire or the Assignment and Acceptance Agreement executed by such
  Lender

  



 


70

















 


Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the
other parties hereto.  All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the
Administrative Agent, the Issuing Bank or the Swingline Bank shall not be
effective until actually received by such Person at its address specified in
this Section 10.1.


 


(b)           Any agreement of the Administrative Agent
and the Lenders herein to receive certain notices by telephone or facsimile is
solely for the convenience and at the request of the Borrower.  The Administrative Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrower to give such notice and the Administrative
Agent and Lenders shall not have any liability to the Borrower or other Person
on account of any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice.  The obligation of the Borrower to repay the
Loans and all other Obligations hereunder shall not be affected in any way or
to any extent by any failure of the Administrative Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice or the
receipt by the Administrative Agent and the Lenders of a confirmation which is
at variance with the terms understood by the Administrative Agent and the
Lenders to be contained in any such telephonic or facsimile notice.


 


Section
10.2.        Waiver;
Amendments.


 


(a)           No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power
hereunder or any other Loan Document, and no course of dealing between the
Borrower and the Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder
or thereunder.  The rights and remedies
of the Administrative Agent, the Issuing Bank and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies provided by law.  No
waiver of any provision of this Agreement or any other Loan Document or consent
to any departure by the Borrower therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given.  Without
limiting the generality of the foregoing, the making of a Loan or the issuance
of a Letter of Credit shall not be construed as a waiver of any Default or
Event of Default, regardless of whether the Administrative Agent, any Lender or
the Issuing Bank may have had notice or knowledge of such Default or Event of
Default at the time.


 


(b)           No amendment or waiver of any provision of
this Agreement or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required


 


71

















 


Lenders or the Borrower and the Administrative Agent with the consent
of the Required Lenders and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided, that no amendment or waiver shall: 
(i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or postpone
the scheduled date for the termination or reduction of any Commitment, without
the written consent of each Lender affected thereby, (iv) change Section 2.20
(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby , without the written consent of each Lender, (v) change any
of the provisions of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders which
are re­quired to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement, without the written consent of each Lender; (vii)
release all or substantially all collateral (if any) securing any of the
Obligations or
agree to subordinate any Lien in such collateral to any other creditor of the
Borrower or any Subsidiary, without the written consent of each Lender;
provided further, that no such agreement shall amend, modify or otherwise
affect the rights, duties or obligations of the Administrative Agent, the
Swingline Bank or the Issuing Bank without the prior written consent of such
Person.  Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Borrower, the Required Lenders and the Administrative Agent (and,
if their rights, duties or obligations are affected thereby, the Issuing Bank
and the Swingline Lender) if (i) by the terms of such agreement the Commitment
of each Lender not consenting to the amendment provided for therein shall
terminate (but such Lender shall continue to be entitled to the benefits of
Sections 2.19, 2.20, and 2.21 and 10.3) upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender
not consenting thereto receives payment in full principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement and is released from its obligations
hereunder.


 


Section
10.3.        Expenses;
Indemnification.


 


(a)           The Borrower shall pay (i) all reasonable,
out-of-pocket costs and expenses of the Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and its Affiliates,
in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents and any
amendments, modifications or waivers thereof (whether or not the transactions
contemplated in this Agreement or any other Loan Document shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank 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 costs and expenses (including, without limitation, the reasonable
fees, charges and disbursements of outside coun­sel and the allocated cost of
inside counsel) incurred by the Administrative Agent, the Issuing Bank or any
Lender in


 


72

















 


connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in
connection with the Loans made or any 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)           The Borrower shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing (each, an “Indemnitee”) against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, which may be 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 or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any Loan or Letter of Credit or any actual or proposed use of the proceeds
therefrom (including any refusal by the Issuing Bank 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 by the Borrower or any Subsidiary or any Environmental
Liability related in any way to the Borrower or any Subsidiary  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
and regardless of whether any Indemnitee is a party thereto; provided, that the
Borrower shall not be obligated to indemnify any Indemnitee for any of the
foregoing arising out of such Indemnitee’s gross negligence or willful
misconduct as determined by a court of competent jurisdiction in a final and
nonappealable judgment.


 


(c)           The Borrower shall pay, and hold the
Administrative Agent and each of the Lenders harmless from and against, any and
all present and future stamp, documentary, and other similar taxes with respect
to this Agreement and any other Loan Documents, any collateral described
therein, or any payments due thereunder, and save the Administrative Agent and
each Lender harmless from and against any and all liabilities with respect to
or resulting from any delay or omission to pay such taxes.


 


(d)           To the extent that the Borrower fails to pay
any amount required to be paid to the Administrative Agent, the Issuing Bank or
the Swingline Lender under clauses (a), (b) or (c) hereof, each Lender
severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Pro Rata Share (determined
as of the time that the unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided, that the unreimbursed expense or indemnified
payment, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such.


 


(e)           To the 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 actual or direct damages) arising out


 


73

















 


of, in connection with or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions contemplated
therein, any Loan or any Letter of Credit or the use of proceeds thereof.


 


(f)            All amounts due under this Section shall be
payable promptly after written demand therefor.


 


Section
10.4.        Successors
and Assigns.


 


(a)           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 the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent 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 and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)           Any Lender may 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 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, 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) of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $1,000,000, in
the case of any assignment of a Revolving Loan or reimbursement obligation of
outstanding Letters of Credit, 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 respect to the Loan or the Commitment assigned , except that this clause (ii) shall not
prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Commitments on a non-pro rata basis, and (iii)
the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and
recordation fee of $1,000, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.  Upon (i) the execution
and delivery of the Assignment and Acceptance by the assigning Lender and
assignee Lender, (ii) acceptance and recording thereof by the Administrative
Agent pursuant to paragraph (c) of this Section, (iii) consent thereof from the
Borrower to the extent required pursuant to this clause (b) and (iv) if such
assignee Lender is a Foreign Lender, compliance by such Person with Section
2.20(e), from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to
the extent of the interest assigned by such Assignment and Acceptance, have


 


74

















 


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 Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance 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 2.18, 2.19, 2.20 and 10.3.  Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph 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 paragraph (d) of this Section.


 


(c)           The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at one of its offices
in Atlanta, Georgia a copy of each Assignment and Acceptance delivered to it
and a register for the recordation of the names and addresses of the Lenders,
and the Commitments of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the 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.


 


(d)           Any Lender may, without the consent of, or
notice to, the Borrower, the Administrative Agent, the Swingline Bank or the
Issuing Bank sell participations to one or more banks or other entities (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 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, the Swingline Bank, the
Issuing Bank 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, modification or waiver with respect to the following to the extent
affecting such Participant:  (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or
interest on, any Loan or LC Disbursement or interest thereon or any fees
hereunder or reduce the amount of, waive or excuse any such payment, or
postpone the scheduled date for the termination or reduction of any Commitment,
without the written consent of each Lender affected thereby, (iv) change
Section 2.21(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of
Lenders which are required to waive, amend or modify any rights hereunder or
make any determination or grant any consent


 


75

















 


hereunder, without the consent of each Lender; (vi) release any
guarantor or limit the liability of any such guarantor under any guaranty
agreement without the written consent of each Lender except to the extent such
release is expressly provided under the terms of the Guaranty Agreement; or
(vii) release all or substantially all collateral (if any) securing any of the
Obligations.  Subject to paragraph (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.18, 2.19 and 2.20  to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to paragraph (b) of this
Section.  To the extent permitted by
law, each Participant also shall be entitled to the benefits of
Section 10.7  as though it were a Lender, provided such Participant
agrees to be subject to Section 10.7  as though it were a Lender.


 


(e)           A Participant shall not be entitled to
receive any greater payment under Section 2.18 and Section 2.20  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 2.20  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
2.20(e)  as
though it were a Lender.


 


(f)            Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement to
secure obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment of a security interest shall release a Lender from
any of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.


 


Section
10.5.        Governing
Law; Jurisdiction; Consent to Service of Process.


 


(a)           This Agreement and the other Loan Documents
shall be construed in accordance with and be governed by the law (without
giving effect to the conflict of law principles thereof) of the State of New York.


 


(b)           The Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the non-exclusive
jurisdiction of the United States District Court of the Northern District of
Georgia, and of any state court of the State of Georgia located in Fulton
County 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 the
transactions contemplated hereby or thereby, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia state court or, to the
extent permitted by applicable law, such Federal court.  Each of the parties hereto agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.  Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or


 


76

















 


any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against the Borrower or
its properties in the courts of any jurisdiction.


 


(c)           The Borrower irrevocably and unconditionally
waives any objection which it may now or hereafter have to the laying of
venue of any such suit, action or proceeding described in paragraph (b) of this
Section and brought in any court referred to in paragraph (b) of this
Section.  Each of the parties hereto
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)           Each party to this Agreement irrevocably
consents to the service of process in the manner provided for notices in
Section 10.1.  Nothing in this Agreement
or in any other Loan Document will affect the right of any party hereto to
serve process in any other manner permitted by law.


 


Section
10.6.        WAIVER OF JURY TRIAL.  EACH PARTY HERETO 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 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 PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY 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.


 


Section
10.7.        Right of Setoff.  In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
each Lender and the Issuing Bank shall have the right, at any time or from time
to time upon the occurrence and during the continuance of an Event of Default,
without prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final)
of the Borrower at any time held or other obligations at any time owing by such
Lender and the Issuing Bank to or for the credit or the account of the Borrower
against any and all Obligations held by such Lender or the Issuing Bank, as the
case may be, irrespective of whether such Lender or the Issuing Bank shall have
made demand hereunder and although such Obligations may be unmatured.  Each Lender and the Issuing Bank agree
promptly to notify the Administrative Agent and the Borrower after any such
set-off and any application made by such Lender and the Issuing Bank, as the
case may be; provided, that the failure to give such notice shall not
affect the validity of such set-off and application.


 


77

















 


Section
10.8.        Counterparts;
Integration.  This Agreement may
be executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument.  This Agreement, the Fee Letter, the other
Loan Documents, and any separate letter agreement(s) relating to any fees
payable to the Administrative Agent constitute the entire agreement among the
parties hereto and thereto regarding the subject matters hereof and thereof and
supersede all prior agreements and understandings, oral or written, regarding
such subject matters.


 


Section
10.9.        Survival.  All covenants, agreements, representations
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any
Loans and issuance of any Letters of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time
any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or
any other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of Sections
2.18, 2.19, 2.20 and 10.3 and Article 9 shall survive
and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof. 
All representations and warranties made herein, in the certificates,
reports, notices, and other documents delivered pursuant to this Agreement
shall survive the execution and delivery of this Agreement and the other Loan
Documents, and the making of the Loans and the issuance of the Letters of Credit.


 


Section
10.10.      Severability.  Any provision of this Agreement or any other
Loan Document held to be illegal, invalid or unenforceable in any jurisdiction,
shall, as to such jurisdiction, be ineffective to the extent of such
illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


Section
10.11.      Confidentiality.  Each of the Administrative Agent, the
Issuing Bank and each Lender agrees to take normal and reasonable precautions
to maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority,
(iv) to the extent that such information becomes publicly available other than
as a result of a breach of this Section, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any
of the foregoing


 


78

















 


on a non-confidential basis from a source other than the Borrower, (v)
in connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
and (ix) subject to provisions substantially similar to this Section 10.11,
to any actual or prospective assignee or Participant, or (vi) with the consent
of the Borrower.  Any Person required to
maintain the confidentiality of any information as provided for 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 its own confidential information.


 


Section
10.12.      Interest Rate Limitation.  Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which may be treated as interest on
such Loan under applicable law (collectively, the “Charges”), shall
exceed the maximum lawful rate of interest (the “Maximum Rate”) which
may be contracted for, charged, taken, received or reserved by a Lender holding
such Loan in accordance with applicable law, the rate of interest payable in
respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but
were not payable as a result of the operation of this Section shall be
cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate
therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Rate to the date of repayment, shall have been received by such
Lender.


 


Section
10.13.      Waiver of Effect of
Corporate Seal.  The
Borrower represents and warrants that neither it nor any other Loan Party is
required to affix its corporate seal to this Agreement or any other Loan
Document pursuant to any requirement of law or regulation, agrees that this
Agreement is delivered by Borrower under seal and waives any shortening of the
statute of limitations that may result from not affixing the corporate seal to
this Agreement or such other Loan Documents.


 


(remainder of page
left intentionally blank)


 


79

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.


 


	
   

  	
  WATSON WYATT & COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Michael J.
  O’Boyle

  
	
   

  	
   

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SUNTRUST BANK

  
	
   

  	
  as Administrative Agent, as Issuing Bank,
  as 

  Swingline Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Revolving
  Commitment: $20,000,000

  
	
   

  	
   

  
	
   

  	
  LC
  Commitment:

  
	
   

  	
   

  
	
   

  	
  Swingline
  Commitment:

  
							



 

















 


	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Revolving
  Commitment: $10,000,000

  
					



 


2

















 


	
   

  	
  MANUFACTURERS AND TRADERS TRUST 

  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: 

  	
   

  
	
   

  	
   

  	
  Title:   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Revolving
  Commitment: $10,000,000

  
					



 


3

















 


	
   

  	
  US BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  

  	
   

  
	
   

  	
   

  	
  Title:     

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Revolving
  Commitment: $10,000,000

  
					



 


4

















 


Schedule I


 


APPLICABLE MARGIN AND
APPLICABLE PERCENTAGE


 


 


	
  Pricing

  	
   

  	
  Total
  Debt/

  	
   

  	
  Applicable
  Percentage

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Level

  	
   

  	
  EBITDA

  	
   

  	
  LIBOR

  	
   

  	
  Base Rate

  	
   

  	
  Commitment
  Fee

  	
   

  	
  LOC Fee

  	
   

  
	
  I

  	
   

  	
  >1.5:1.0

  	
   

  	
  1.75

  	
  %

  	
  0.25

  	
  %

  	
  0.35

  	
  %

  	
  1.75

  	
  %

  
	
  II

  	
   

  	
  <1.5:1.0 but >1.0:1.0

  	
   

  	
  1.50

  	
  %

  	
  0.00

  	
  %

  	
  0.30

  	
  %

  	
  1.50

  	
  %

  
	
  III

  	
   

  	
  <1.0:1.0 but >0.5:1.0

  	
   

  	
  1.25

  	
  %

  	
  0.00

  	
  %

  	
  0.25

  	
  %

  	
  1.25

  	
  %

  
	
  IV

  	
   

  	
  <0.5:1.0

  	
   

  	
  1.00

  	
  %

  	
  0.00

  	
  %

  	
  0.20

  	
  %

  	
  1.00

  	
  %

  



 

















 


SCHEDULE 4.5


 


ENVIRONMENTAL MATTERS


 

















 


SCHEDULE 4.14


 


SUBSIDIARIES


 

















 


SCHEDULE 7.1


 


OUTSTANDING
INDEBTEDNESS


 

















 


SCHEDULE 7.2


 


EXISTING LIENS


 

















 


SCHEDULE 7.4


 


EXISTING INVESTMENTS