exv10w2



 










Exhibit 10.2

CREDIT AGREEMENT



Dated as of July 10, 2003



among



ORBITAL SCIENCES CORPORATION,

as the Borrower,



THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,

as the Guarantors,



BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and L/C Issuer,



GENERAL ELECTRIC CAPITAL CORPORATION,

as Documentation Agent,



and



The Other Lenders Party Hereto



Arranged By:



BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Sole Book Manager















 






 







TABLE OF CONTENTS




	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 	1.01    Defined Terms.
	 	 	1	 
	 	1.02    Other Interpretive Provisions.
	 	 	22	 
	 	1.03    Accounting Terms.
	 	 	23	 
	 	1.04    Rounding.
	 	 	23	 
	 	1.05    References to Agreements and Laws.
	 	 	23	 
	 	1.06    Times of Day.
	 	 	24	 
	 	1.07    Letter of Credit Amounts.
	 	 	24	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	24	 
	 	2.01    Revolving Loans.
	 	 	24	 
	 	2.02    Borrowings, Conversions and Continuations of Loans.
	 	 	25	 
	 	2.03    Letters of Credit.
	 	 	26	 
	 	2.04    Swing Line Loans.
	 	 	33	 
	 	2.05    Prepayments.
	 	 	35	 
	 	2.06    Termination or Reduction of Aggregate Revolving Commitments.
	 	 	36	 
	 	2.07    Repayment of Loans.
	 	 	36	 
	 	2.08    Interest.
	 	 	36	 
	 	2.09    Fees.
	 	 	37	 
	 	2.10    Computation of Interest and Fees.
	 	 	37	 
	 	2.11    Evidence of Debt.
	 	 	38	 
	 	2.12    Payments Generally.
	 	 	38	 
	 	2.13    Sharing of Payments.
	 	 	40	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	40	 
	 	3.01    Taxes.
	 	 	40	 
	 	3.02    Illegality.
	 	 	41	 
	 	3.03    Inability to Determine Rates.
	 	 	42	 
	 	3.04     Increased Cost and Reduced Return; Capital Adequacy.
	 	 	42	 
	 	3.05    Funding Losses.
	 	 	43	 
	 	3.06    Matters Applicable to all Requests for Compensation.
	 	 	43	 
	 	3.07    Survival.
	 	 	43	 
	ARTICLE
IV GUARANTY
	 	 	43	 
	 	4.01    The Guaranty.
	 	 	43	 
	 	4.02    Obligations Unconditional.
	 	 	44	 
	 	4.03    Reinstatement.
	 	 	45	 
	 	4.04    Certain Additional Waivers.
	 	 	45	 
	 	4.05    Remedies.
	 	 	45	 
	 	4.06    Rights of Contribution.
	 	 	45	 
	 	4.07    Guarantee of Payment; Continuing Guarantee.
	 	 	46	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	46	 
	 	5.01    Conditions of Initial Credit Extension.
	 	 	46	 
	 	5.02    Conditions to all Credit Extensions.
	 	 	49	 
	 	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	50	 
	 	6.01    Existence, Qualification and Power.
	 	 	50	 
	 	6.02    Authorization; No Contravention.
	 	 	50	 



i






 




	 	 	 	 	 	 
	 	6.03    Governmental Authorization; Other Consents.
	 	 	51	 
	 	6.04    Binding Effect.
	 	 	51	 
	 	6.05    Financial Statements; No Material Adverse Effect.
	 	 	51	 
	 	6.06    Litigation.
	 	 	52	 
	 	6.07    No Default.
	 	 	52	 
	 	6.08    Ownership of Property; Liens. 
	 	 	52	 
	 	6.09    Environmental Compliance.
	 	 	52	 
	 	6.10    Insurance.
	 	 	53	 
	 	6.11    Taxes.
	 	 	53	 
	 	6.12    ERISA Compliance.
	 	 	53	 
	 	6.13    Subsidiaries.
	 	 	54	 
	 	6.14    Margin Regulations; Investment Company Act; Public Utility Holding Company Act.
	 	 	54	 
	 	6.15    Disclosure.
	 	 	54	 
	 	6.16    Compliance with Laws.
	 	 	55	 
	 	6.17    Intellectual Property; Licenses, Etc.
	 	 	55	 
	 	6.18    [Reserved];.
	 	 	55	 
	 	6.19    Effectiveness of Security Interests in the Collateral.
	 	 	55	 
	 	6.20    Business Locations.
	 	 	55	 
	 	6.21    Labor Matters.
	 	 	56	 
	 	6.22    Tax Shelter Regulations.
	 	 	56	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	56	 
	 	7.01    Financial Statements.
	 	 	56	 
	 	7.02    Certificates; Other Information.
	 	 	57	 
	 	7.03    Notices.
	 	 	58	 
	 	7.04    Payment of Obligations.
	 	 	59	 
	 	7.05    Preservation of Existence, Etc.
	 	 	59	 
	 	7.06    Maintenance of Properties.
	 	 	59	 
	 	7.07    Maintenance of Insurance.
	 	 	59	 
	 	7.08    Compliance with Laws.
	 	 	60	 
	 	7.09    Books and Records.
	 	 	60	 
	 	7.10    Inspection Rights; Field Audits.
	 	 	60	 
	 	7.11    Use of Proceeds.
	 	 	60	 
	 	7.12    Additional Subsidiaries.
	 	 	61	 
	 	7.13    ERISA Compliance.
	 	 	61	 
	 	7.14    Pledged Assets.
	 	 	61	 
	 	7.15    Payment Account.
	 	 	62	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	63	 
	 	8.01    Liens.
	 	 	63	 
	 	8.02    Investments.
	 	 	65	 
	 	8.03    Indebtedness.
	 	 	66	 
	 	8.04    Fundamental Changes.
	 	 	67	 
	 	8.05    Dispositions.
	 	 	67	 
	 	8.06    Restricted Payments.
	 	 	68	 
	 	8.07    Change in Nature of Business.
	 	 	68	 
	 	8.08    Transactions with Affiliates and Insiders.
	 	 	69	 
	 	8.09    Burdensome Agreements.
	 	 	69	 



ii






 




	 	 	 	 	 	 
	 	8.10    Use of Proceeds.
	 	 	69	 
	 	8.11    Financial Covenants.
	 	 	69	 
	 	8.12    Senior Note Documents; Repurchase of Senior Notes.
	 	 	70	 
	 	8.13    Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.
	 	 	71	 
	 	8.14    Ownership of Subsidiaries.
	 	 	71	 
	 	8.15    Sale and Leaseback Transactions.
	 	 	71	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES
	 	 	71	 
	 	9.01    Events of Default.
	 	 	71	 
	 	9.02    Remedies Upon Event of Default.
	 	 	73	 
	 	9.03    Application of Funds.
	 	 	74	 
	ARTICLE X ADMINISTRATIVE AGENT
	 	 	75	 
	 	10.01    Appointment and Authorization of Administrative Agent.
	 	 	75	 
	 	10.02    Delegation of Duties.
	 	 	75	 
	 	10.03    Liability of Administrative Agent.
	 	 	75	 
	 	10.04    Reliance by Administrative Agent.
	 	 	76	 
	 	10.05    Notice of Default.
	 	 	76	 
	 	10.06    Credit Decision; Disclosure of Information by Administrative Agent.
	 	 	76	 
	 	10.07    Indemnification of Administrative Agent.
	 	 	77	 
	 	10.08    Administrative Agent in its Individual Capacity.
	 	 	77	 
	 	10.09    Successor Administrative Agent.
	 	 	78	 
	 	10.10    Administrative Agent May File Proofs of Claim.
	 	 	78	 
	 	10.11    Collateral and Guaranty Matters.
	 	 	79	 
	 	10.12    Other Agents; Arrangers and Managers.
	 	 	79	 
	ARTICLE XI MISCELLANEOUS
	 	 	80	 
	 	11.01    Amendments, Etc.
	 	 	80	 
	 	11.02    Notices and Other Communications; Facsimile Copies.
	 	 	81	 
	 	11.03    No Waiver; Cumulative Remedies.
	 	 	82	 
	 	11.04    Attorney Costs, Expenses and Taxes.
	 	 	82	 
	 	11.05    Indemnification by the Borrower.
	 	 	83	 
	 	11.06    Payments Set Aside.
	 	 	83	 
	 	11.07    Successors and Assigns.
	 	 	84	 
	 	11.08    Confidentiality.
	 	 	86	 
	 	11.09    Set-off.
	 	 	87	 
	 	11.10    Interest Rate Limitation.
	 	 	87	 
	 	11.11    Counterparts.
	 	 	87	 
	 	11.12    Integration.
	 	 	87	 
	 	11.13    Survival of Representations and Warranties.
	 	 	88	 
	 	11.14    Severability.
	 	 	88	 
	 	11.15    Tax Forms.
	 	 	88	 
	 	11.16    Replacement of Lenders.
	 	 	90	 
	 	11.17    Release of Collateral and Guarantees.
	 	 	90	 
	 	11.18    Governing Law.
	 	 	90	 
	 	11.19    Waiver of Right to Trial by Jury.
	 	 	91	 



iii






 



SCHEDULES




	 	 	 
	2.01	 	
Commitments and Pro Rata Shares
	 	 	 
	6.10	 	
Insurance
	 	 	 
	6.13	 	
Subsidiaries
	 	 	 
	6.17	 	
IP Rights
	 	 	 
	6.20(a)	 	
Locations of Real Property
	 	 	 
	6.20(b)	 	
Locations of Tangible Personal Property
	 	 	 
	6.20(c)	 	
Location of Chief Executive Office
	 	 	 
	6.20(e)	 	
Changes in Legal Name, State of Formation and Structure
	 	 	 
	8.01	 	
Liens Existing on the Closing Date
	 	 	 
	8.02	 	
Investments Existing on the Closing Date
	 	 	 
	8.03-1	 	
Indebtedness Existing on the Closing Date
	 	 	 
	8.03-2	 	
Certain Letters of Credit Existing on the Closing Date
	 	 	 
	8.15	 	
Sale and Leaseback Transactions Existing on the Closing Date
	 	 	 
	11.02	 	
Certain Addresses for Notices



EXHIBITS




	 	 	 
	A	 	
Form of Loan Notice
	 	 	 
	B	 	
Form of Swing Line Loan Notice
	 	 	 
	C-1	 	
Form of Revolving Note
	 	 	 
	C-2	 	
Form of Swing Line Note
	 	 	 
	D	 	
Form of Compliance Certificate
	 	 	 
	E	 	
Form of Borrowing Base Certificate
	 	 	 
	F	 	
Form of Assignment and Assumption
	 	 	 
	G	 	
Form of Joinder Agreement



iv






 



CREDIT AGREEMENT



     This
CREDIT AGREEMENT (the “Agreement”) is entered into as of July 10,
2003 among ORBITAL SCIENCES CORPORATION, a Delaware corporation (the
“Borrower”), the Guarantors (defined herein), the Lenders (defined herein),
GENERAL ELECTRIC CAPITAL CORPORATION, as Documentation Agent, and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.


     The Borrower has requested that the Lenders provide a $50,000,000
revolving credit facility for the purposes set forth herein, and the Lenders
are willing to do so on the terms and conditions set forth herein.


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


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS



     1.01     Defined Terms.


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


     “Account Control Agreement” means each control agreement among the Loan
Parties, the Administrative Agent and the banking institution maintaining any
Payment Account, in form and substance satisfactory to the Administrative
Agent.


     “Acquisition”, by any Person, means the acquisition by such Person, in a
single transaction or in a series of related transactions, of all or any
substantial portion of the Property of another Person or at least a majority of
the Voting Stock of another Person, in each case whether or not involving a
merger or consolidation with such other Person and whether for cash, property,
services, assumption of Indebtedness, securities or otherwise.


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


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


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


     “Affiliate” means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
“Control” means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
“Controlling” and “Controlled” have meanings correlative thereto. Without limiting the
generality of the foregoing, a Person shall be deemed to be Controlled by
another Person if such other Person possesses, directly or indirectly, power to
vote 10% or more of the securities having

 






 




ordinary voting power for the election of directors, managing general
partners or the equivalent. The term “Affiliate” shall not include Orbital
Imaging Corporation.


     “Agent-Related Persons” means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Arranger), and the officers, directors, employees,
agents and attorneys-in-fact of such Persons and Affiliates.


     “Aggregate Revolving Commitments” means the Revolving Commitments of all
the Lenders. The initial amount of the Aggregate Revolving Commitments in
effect on the Closing Date is FIFTY MILLION DOLLARS ($50,000,000).


     “Agreement” means this Credit Agreement, as amended, modified,
supplemented and extended from time to time.


     “Applicable Rate” means the following percentages per annum, based upon
the Consolidated Total Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant
to Section 7.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated Total	 	 	 	 	 	Letters of Credit and	 	 	 	 
	Pricing Tier	 	Leverage Ratio	 	Commitment Fee	 	Eurodollar Loans	 	Base Rate Loans
	
	 	
	 	
	 	
	 	

	1
	 	>2.75:1.0	 	 	0.50	%	 	 	3.00	%	 	 	1.50	%
	2
	 	£2.75:1.0 but >2.25	 	 	0.50	%	 	 	2.75	%	 	 	1.25	%
	3
	 	£2.25:1.0 but >1.75	 	 	0.50	%	 	 	2.50	%	 	 	1.00	%
	4
	 	£1.75:1.0	 	 	0.50	%	 	 	2.25	%	 	 	0.75	%



Any increase or decrease in the Applicable Rate resulting from a change in the
Consolidated Total Leverage Ratio shall become effective as of the first
Business Day immediately following the date a Compliance Certificate (together
with the related financial statements required by Section 7.01(a) or Section
7.01(b), as applicable) is delivered pursuant to
Section 7.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in
accordance with such Section, then Pricing Tier 1 shall apply as of the first
Business Day after the date on which such Compliance Certificate was required
to have been delivered and shall continue to apply until the first Business Day
immediately following the date such Compliance Certificate (together with the
related financial statements required by Section 7.01(a) or Section 7.01(b), as
applicable) is actually delivered. The Applicable Rate in effect from the
Closing Date through the first Business Day immediately following the date a
Compliance Certificate (together with the related financial statements required
by Section 7.01(a) or Section 7.01(b), as applicable) is delivered pursuant to
Section 7.02(a) for the fiscal quarter ending September 30, 2003 shall be
determined based upon Pricing Tier 1.


     “Arranger” means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.


     “Assignment and Assumption” means an Assignment and Assumption
substantially in the form of Exhibit F.


     “Attorney Costs” means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.


2






 


     “Attributable Indebtedness” means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease, and (c) in respect of any
Securitization Transaction of any Person, the outstanding principal amount of
such financing, after taking into account reserve accounts and making
appropriate adjustments, determined by the Administrative Agent in its
reasonable judgment.


     “Audited Financial Statements” means the audited consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries for the
fiscal years ended December 31, 2000, December 31, 2001 and December 31, 2002,
and the related consolidated and consolidating statements of income or
operations, shareholders’ equity and cash flows for such fiscal years of the
Borrower and its Subsidiaries, including the notes thereto.


     “Availability Period” means, with respect to the Revolving Commitments,
the period from and including the Closing Date to the earliest of (a) the
Maturity Date, (b) the date of termination of the Aggregate Revolving
Commitments pursuant to Section 2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of the L/C Issuer
to make L/C Credit Extensions pursuant to Section 9.02.


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


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


     “Base Rate Loan” means a Loan that bears interest based on the Base Rate.


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


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


     “Borrowing Base” means, as of any day, the sum of (a) an amount equal to
ninety percent (90%) of Eligible Government Receivables plus (b) an amount
equal to eighty percent (80%) of Eligible Commercial Receivables plus (c) an
amount equal to the lesser of (i) fifty percent (50%) of the sum of the
immediately preceding clauses (a) and (b), (ii) fifty percent (50%) of the
Aggregate Revolving Commitments and (iii) fifty percent (50%) of Eligible
Unbilled Receivables, in each case as set forth in the most recent Borrowing
Base Certificate delivered to the Administrative Agent and the Lenders in
accordance with the terms of Section 7.02(a). Upon the request of the
Borrower, the Required Lenders may, in their sole discretion, at any time after
the Closing Date, amend this definition to include inventory in the calculation
of the Borrowing Base, with advance rates and eligibility criteria agreed to by
the Borrower and the Required Lenders.


3






 


     “Borrowing Base Certificate” has the meaning specified in Section 7.02(b).


     “Business Day” means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent’s Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.


     “Businesses” means, at any time, a collective reference to the businesses
operated by the Borrower and its Subsidiaries at such time.


     “Capital Stock” means (i) in the case of a corporation, capital stock,
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock, (iii) in the case of a partnership, partnership interests
(whether general or limited), (iv) in the case of a limited liability company,
membership interests and (v) any other interest or participation that confers
on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.


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

     “Cash Equivalents” means, as at any date, (a) securities issued or
directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States of America is pledged in support thereof) and securities
issued by any state of the United States of America or any political
subdivision thereof having the highest rating obtainable from either Moody’s or
S&P, in each case maturing within one year after the date of acquisition, (b)
time deposits, certificates of deposit, bankers’ acceptances and commercial
paper issued by the parent corporation of any domestic commercial bank of
recognized standing having capital and surplus in excess of $500 million, in
each case maturing within one year after the date of acquisition, (c)
commercial paper issued by others rated at least A-2 or the equivalent thereof
by S&P or at least P-2 or the equivalent thereof by Moody’s, in each case
maturing within one year after the date of acquisition, (d) repurchase
obligations with a term of not more than seven days for underlying securities
of the types described in (a) and (b) above entered into with any financial
institution meeting the qualifications specified in (b) above, or (e)
investment or money market funds, substantially all of the assets of which
constitute Cash Equivalents of the kinds described in (a) through (d) of this
definition.


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



		
	 	     (a)     any “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any
employee benefit plan of such person or its subsidiaries, and any person
or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as
defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of
1934, except that a person or group shall be deemed to have “beneficial
ownership” of all Capital Stock that such person or group has the right
to acquire (such right, an “option right”), whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of thirty percent (30%) of the Capital Stock of the Borrower
entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully diluted basis (and taking into
account all such securities that such person or group has the right to
acquire pursuant to any option right); or




		
	 	     (b)     during any period of 24 consecutive months, a majority of the
members of the board of directors or other equivalent governing body of
the Borrower cease to be composed of



4






 







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




		
	 	     (c)     the occurrence of a “Change of Control” under, and as defined
in, the Senior Note Indenture.



     “Closing Date” means the date hereof.


     “Collateral” means a collective reference to all real and personal
Property with respect to which Liens in favor of the Administrative Agent are
purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.


     “Collateral Documents” means a collective reference to the Security
Agreement, the Pledge Agreement, each Account Control Agreement, the Mortgage
Instruments and such other security documents as may be executed and delivered
by the Loan Parties pursuant to the terms of Section 7.14.


     “Commitment Fee” has the meaning specified in Section 2.09(a).


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


     “Consolidated Adjusted EBITDA” means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated EBITDA for such period minus (b) Consolidated Cash Taxes for such
period minus (c) Consolidated Capital Expenditures for such period, all as
determined in accordance with GAAP.


     “Consolidated Capital Expenditures” means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, all capital
expenditures, as determined in accordance with GAAP; provided, however, that
Consolidated Capital Expenditures shall not include (a) expenditures made with
proceeds of any Involuntary Disposition to the extent such expenditures are
used to purchase Property that is the same as or similar to the Property
subject to such Involuntary Disposition or (b) Permitted Acquisitions.


     “Consolidated Cash Taxes” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the aggregate of all income taxes, as
determined in accordance with GAAP, to the extent the same are paid in cash
during such period.


     “Consolidated EBITDA” means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net
Income for such period plus the following to the extent deducted in calculating
such Consolidated Net Income: (a) Consolidated Interest Charges for such
period, (b) the provision for federal, state, local and foreign income taxes
payable by the Borrower and its Subsidiaries for such period, (c) the amount of
depreciation and amortization expense for such period and (d) payments made and
costs accrued during the fiscal quarters ending March 31, 2003 and June 30,
2003


5






 


pursuant to the Plan of Settlement among Orbital Imaging Corporation, the
Official Committee of the Unsecured Creditors, Orbital Sciences Corporation,
David W. Thompson and J.R. Thompson dated February 11, 2003, as amended, not to
exceed $4.5 million, and (e) one-time write-off made during the fiscal quarter
ending June 30, 2002 pursuant to the Lockheed Martin Commercial Space Systems
Settlement Agreement Release and Subcontract Amendment dated May 20, 2003, not
to exceed $1.0 million, all as determined in accordance with GAAP.


     “Consolidated Fixed Charges” means, for any period for the Borrower and
its Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Interest Charges for such period plus (b) Consolidated Scheduled
Funded Debt Payments for such period plus (c) all dividends made on the Capital
Stock of the Borrower during such period plus (d) all amounts paid by the
Borrower and its Subsidiaries to repurchase warrants for the Capital Stock of
the Borrower during such period to the extent that the aggregate amount paid by
the Borrower and its Subsidiaries to repurchase such warrants after the Closing
Date exceeds $5,000,000 (other than the repurchase of warrants pursuant to
Section 8.06(c)), all as determined in accordance with GAAP.


     “Consolidated Fixed Charges Coverage Ratio” means, as of any date of
determination, the ratio of (i) Consolidated Adjusted EBITDA for the period of
the four fiscal quarters most recently ended to (ii) Consolidated Fixed Charges
for the period of the four fiscal quarters most recently ended.


     “Consolidated Funded Indebtedness” means Funded Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.


     “Consolidated Interest Charges” means, for any period for the Borrower and
its Subsidiaries on a consolidated basis, all interest expense of the Borrower
and its Subsidiaries for such period determined in accordance with GAAP
(including, without limitation, the portion of rent expense of the Borrower and
its Subsidiaries with respect to such period under capital leases that is
treated as interest in accordance with GAAP).


     “Consolidated Net Income” means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding extraordinary gains) for such period as determined in
accordance with GAAP.


     “Consolidated Net Worth” means, as of any date of determination,
consolidated shareholders’ equity of the Borrower and its Subsidiaries as of
such date determined in accordance with GAAP.


     “Consolidated Rental Expense” means for any period for the Borrower and
its Subsidiaries on a consolidated basis, rental expense under operating leases
for such period as determined in accordance with GAAP.


     “Consolidated Scheduled Funded Debt Payments” means for any period for the
Borrower and its Subsidiaries on a consolidated basis, the sum of all scheduled
payments of principal on Consolidated Funded Indebtedness, as determined in
accordance with GAAP. For purposes of this definition, “scheduled payments of
principal” (a) shall be determined without giving effect to any reduction of
such scheduled payments resulting from the application of any voluntary or
mandatory prepayments made during the applicable period (but giving effect to
reductions from the application of prepayments made during any period prior to
the applicable period), (b) shall be deemed to include the Attributable
Indebtedness in respect of capital leases and Synthetic Leases and (c) shall
not include any voluntary prepayments or mandatory prepayments required
pursuant to Section 2.05.


6






 


     “Consolidated Secured Funded Indebtedness” means Consolidated Funded
Indebtedness that is secured by a Lien on any Property of the Borrower or any
Subsidiary.


     “Consolidated Secured Leverage Ratio” means, as of any date of
determination, the ratio of (a) the sum of (i) Consolidated Secured Funded
Indebtedness as of such date less (ii) the outstanding amount of the Specified
Letters of Credit as of such date to the extent secured by cash collateral to
(b) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended.


     “Consolidated Total Leverage Ratio” means, as of any date of
determination, the ratio of (a) the sum of (i) Consolidated Funded Indebtedness
as of such date less (ii) the outstanding amount of the Specified Letters of
Credit as of such date to the extent secured by cash collateral to (b)
Consolidated EBITDA for the period of the four fiscal quarters most recently
ended.


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


     “Control” has the meaning specified in the definition of “Affiliate.”


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


     “Debtor Relief Laws” means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.


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


     “Default Rate” means an interest rate equal to (a) the Base Rate plus (b)
the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including
any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in
each case to the fullest extent permitted by applicable Laws.


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


     “Disposition” or “Dispose” means the sale, transfer, license, lease or
other disposition (including any Sale and Leaseback Transaction) of any
Property by the Borrower or any Subsidiary (including the Capital Stock of any
Subsidiary), including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith, but excluding (i) the sale, lease, license,
transfer or other disposition of inventory in the ordinary course of business
of the Borrower and its Subsidiaries, (ii) the sale, lease, license, transfer
or other disposition of personal property no longer used or useful in the
conduct of business of the Borrower and its Subsidiaries, (iii) any sale,
lease, license, transfer or other disposition of Property by the Borrower or
any Subsidiary to any Loan Party, (iv) any Involuntary Disposition by the
Borrower or any Subsidiary, (v) any sale, lease,


7






 


license, transfer or other disposition of Property by any Foreign
Subsidiary to another Foreign Subsidiary, (vi) the sale of the Borrower’s
Transportation Management Systems division, (vii) the license by the Borrower
or any Subsidiary, on a non-exclusive basis, of IP Rights in the ordinary
course of business, (viii) the surrender or waiver of contract rights in the
ordinary course of business, (ix) the settlement, release or surrender of tort
or other litigation claims in the ordinary course of business and (x) the grant
of Permitted Liens.


     “Documentation Agent” means General Electric Capital Corporation in its
capacity as documentation agent under any of the Loan Documents.


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


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


     “Eligible Assignee” means (a) a Lender; (b) an Affiliate of a Lender; and
(c) any other Person (other than a natural person) approved by (i) the
Administrative Agent, the L/C Issuer and the Swing Line Lender, and (ii) unless
an Event of Default has occurred and is continuing, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


     “Eligible Commercial Receivables” means all Eligible Receivables other
than Eligible Government Receivables.


     “Eligible Government Receivables” means all Eligible Receivables
representing a sale to any federal, state or local government of the United
States or any department, agency, instrumentality or political subdivision
thereof pursuant to contracts under which the Borrower or a Subsidiary is the
prime contractor or a subcontractor with the prime contractor.


     “Eligible Receivables” means, as of any date of determination and without
duplication, the aggregate book value of all accounts receivable, receivables,
and obligations for payment created or arising from the sale of inventory or
the rendering of services in the ordinary course of business (collectively, the
“Receivables”), owned by or owing to the Borrower or any of its Domestic
Subsidiaries, net of allowances and reserves for doubtful or uncollectible
accounts and sales adjustments consistent with such Person’s internal policies
and in any event in accordance with GAAP, but excluding in any event (a) any
Receivable which is (i) not subject to a perfected, first priority Lien in
favor of the Administrative Agent to secure the Obligations or (ii) subject to
any Lien that is not a Permitted Lien, (b) Receivables which are more than 90
days past invoice date, (c) 50% of the book value of any Receivable not
otherwise excluded by clause (b) above if any other Receivable(s) in an
aggregate amount in excess of $10,000 owing by the same account debtor under
the same contract is then excluded by such clause (b), unless the exclusion by
such clause (b) is a result of a legitimate dispute by the account debtor and
the applicable Receivable is no more than 90 days past due or 120 days past
invoice date, (d) Receivables evidenced by notes, chattel paper or other
instruments, unless such notes, chattel paper or instruments have been
delivered to and are in the possession of the Administrative Agent, (e)
Receivables owing by an account debtor which is not solvent or is subject to
any bankruptcy or insolvency proceeding of any kind, (f) Receivables owing by
an account debtor that is not organized under the laws of the United States or
any state thereof, except to the extent that such Receivable is secured or
payable by a letter of credit reasonably satisfactory to the Administrative
Agent (so long as the export-import bank does not have a first priority Lien in
such Receivable), (g) Receivables for which the Borrower, any Subsidiary or any
Affiliate is the account debtor, and (h) Receivables in connection with any
contract for which a surety may be liable under a surety bond issued by such
surety.


8






 


     “Eligible Unbilled Receivables” means, as of any date of determination and
without duplication, all amounts representing unbilled Receivables due to
timing differences (i.e., amounts able to be billed but that have not been
billed) and progress billings (“progress billing” means any amounts owing for
goods sold or leased or services rendered under a contract or agreement
pursuant to which the account debtor’s obligation to pay such amounts is
conditioned upon the Borrower’s or a Subsidiary’s completion of any further
performance under the contract or agreement), in each case net of allowances
and reserves for doubtful or uncollectible accounts and sales adjustments
consistent with such Person’s internal policies and in any event in accordance
with GAAP, provided that (i) if any Receivable(s) in an aggregate amount in
excess of $10,000 owing by the account debtor under the same contract is
excluded by clause (b) of the definition of “Eligible Receivables”, then 50% of
the work-in-process under such contract shall be excluded from the calculation
of “Eligible Unbilled Receivables”, unless the exclusion by such clause (b) is
a result of a legitimate dispute by the account debtor and the applicable
Receivable is no more than 120 days past due, (ii) such amounts, if billed as
of the date of determination, would constitute Eligible Receivables and (iii)
such amounts shall not include, in any event, unbilled Receivables resulting
from (A) fee and rate variances, (B) retainages and (C) incentives.


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


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


     “Equity Issuance” means any issuance by the Borrower to any Person of
shares of its Capital Stock, other than (a) any issuance of shares of its
Capital Stock pursuant to the exercise of options or warrants, (b) any issuance
of shares of its Capital Stock pursuant to the conversion of any debt
securities to equity or the conversion of any class of equity securities to any
other class of equity securities, (c) any issuance by the Borrower of shares of
its Capital Stock as consideration for a Permitted Acquisition and (d) any
stock grant to an employee of the Borrower or any Subsidiary under a stock
option plan (including, without limitation, any 401(k) plan, employee stock
option plan or executive compensation plan) of the Borrower.


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


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


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


9






 


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


     “Eurodollar Base Rate” means, for any Interest Period with respect to any
Eurodollar Rate Loan:



		
	 	     (a)     the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, or




		
	 	     (b)     if the rate referenced in the preceding clause (a) does not
appear on such page or service or such page or service shall not be
available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period, or




		
	 	     (c)     if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum (rounded upward to the next 1/100th of
1%) determined by the Administrative Agent as the rate of interest at
which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate
Loan being made, continued or converted by Bank of America and with a
term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 4:00 p.m. (London time) two
Business Days prior to the first day of such Interest Period.



     “Eurodollar Rate” means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
to be equal to the quotient obtained by dividing (a) the Eurodollar Base Rate
for such Eurodollar Loan for such Interest Period by (b) one minus the
Eurodollar Reserve Percentage for such Eurodollar Loan for such Interest
Period.


     “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on
the Eurodollar Rate.


     “Eurodollar Reserve Percentage” means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.


     “Event of Default” has the meaning specified in Section 9.01.


10






 


     “Excluded Property” means, with respect to any Loan Party, (a) any owned
or leased personal Property that is located outside of the United States unless
requested by the Administrative Agent or the Required Lenders, (b) any owned or
leased real Property unless requested by the Administrative Agent or the
Required Lenders, (c) any personal Property (including, without limitation,
motor vehicles) in respect of which perfection of a Lien is not either (i)
governed by the Uniform Commercial Code or (ii) effected by appropriate
evidence of the Lien being filed in either the United States Copyright Office
or the United States Patent and Trademark Office, unless requested by the
Administrative Agent or the Required Lenders, (d) any Property which is subject
to a Lien permitted under Section 8.01(i) pursuant to documents which prohibit
such Loan Party from granting any other Liens in such Property, and (e) any
lease, license or other contract if the grant of a Lien in such lease, license
or contract in the manner contemplated by the Loan Documents is prohibited by
the terms of such lease, license or contract and would result in the
termination of, or any claim for damages or the availability of any other
remedial action under, such lease, license or contract, but only to the extent
that such prohibition is not rendered ineffective pursuant to the Uniform
Commercial Code or any other applicable law (including Debtor Relief Laws) or
principles of equity.


     “Existing Credit Facility” means that certain Loan and Security Agreement
dated as of March 1, 2002, among the Borrower, Foothill Capital Corporation,
and the other parties specified therein.


     “Facilities” means, at any time, a collective reference to the facilities
and real properties owned, leased or operated by the Borrower or any
Subsidiary.


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


     “Fee Letter” means the letter agreement dated June 16, 2003 among the
Borrower, the Administrative Agent and the Arranger.


     “Foreign Lender” has the meaning specified in Section 11.15(a)(i).


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


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


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


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



		
	 	     (a)     all obligations for borrowed money, whether current or long-term
(including the Obligations) and all obligations of such Person evidenced
by bonds, debentures, notes, loan agreements or other similar
instruments;



11






 







		
	 	     (b)     all purchase money Indebtedness;




		
	 	     (c)     the principal portion of all obligations under conditional sale
or other title retention agreements relating to Property purchased by
such Person (other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary course of
business);




		
	 	     (d)     all obligations arising under letters of credit, bankers’
acceptances, bank guaranties and similar instruments;




		
	 	     (e)     all obligations in respect of the deferred purchase price of
Property or services (other than trade accounts payable in the ordinary
course of business);




		
	 	     (f)     all Attributable Indebtedness;




		
	 	     (g)     all preferred stock or other equity interests providing for
mandatory redemptions, sinking fund or like payments prior to the
Maturity Date;




		
	 	     (h)     all Funded Indebtedness of others secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the proceeds
of production from, Property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed;




		
	 	     (i)     all Guarantees with respect to Funded Indebtedness of the types
specified in clauses (a) through (h) above of another Person; and




		
	 	     (j)     all Funded Indebtedness of the types referred to in clauses (a)
through (i) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) in
which such Person is a general partner or joint venturer, except to the
extent such Funded Indebtedness is expressly made non-recourse to such
Person.




		
	 	     For purposes hereof, the amount of any obligation arising under letters
of credit, bankers’ acceptances, bank guaranties and similar instruments
shall be the maximum amount available to be drawn thereunder on the date
of determination. Notwithstanding anything herein to the contrary,
“Funded Indebtedness” shall not include obligations under surety bonds.



     “GAAP” means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, consistently
applied and as in effect from time to time.


     “Governmental Authority” means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.


     “Guarantee” means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation, (ii) to purchase or


12






 


lease Property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the
related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith (the “Guarantee Amount”), provided that with respect to
any Guarantee under clause (b), if such Person has not assumed the applicable
Indebtedness or obligation, then the amount of such Guarantee shall be the
lesser of the Guarantee Amount and the fair market value of the assets subject
to the applicable Lien. The term “Guarantee” as a verb has a corresponding
meaning.


     “Guaranty” means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders pursuant to Article IV hereof.


     “Guarantors” means each Person that joins as a Guarantor pursuant to
Section 7.12, together with their successors and permitted assigns.


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


     “Immaterial Domestic Subsidiary” means (a) the Non-Guarantor Subsidiaries
unless and until either (i) the revenue of the Non-Guarantor Subsidiaries, in
the aggregate, exceeds one percent (1%) of the revenue of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP or (ii)
the book value of the assets of the Non-Guarantor Subsidiaries, in the
aggregate, exceeds one percent (1%) of the book value of the assets of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP and (b) any other Domestic Subsidiary unless and until (i) the
revenue of such Domestic Subsidiary exceeds 1% of the revenue of the Borrower
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
or (ii) the book value of the assets of such Domestic Subsidiary exceeds 1% of
the book value of the assets of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP.


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



		
	 	     (a)     all Funded Indebtedness;




		
	 	     (b)     all obligations under surety bonds; and




		
	 	     (c)     net obligations under any Swap Contract.




		
	 	     For purposes hereof the amount of any net obligation under any Swap
Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date.



13






 






     “Indemnified Liabilities” has the meaning set forth in Section 11.05.


     “Indemnitees” has the meaning set forth in Section 11.05.


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


     “Interest Period” means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three
or six months thereafter, each option as selected by the Borrower in its Loan
Notice; provided that:



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




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




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



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


     “Investment” means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of Capital Stock of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person, or (c) an Acquisition. For purposes of covenant compliance, the amount
of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.


     “Involuntary Disposition” means any material loss of, damage to or
destruction of, or any condemnation or other taking for public use of, any
material Property of the Borrower or any Subsidiary.


     “IP Rights” has the meaning set forth in Section 6.17.


     “IRS” means the United States Internal Revenue Service.


     “Joinder Agreement” means a joinder agreement substantially in the form of
Exhibit G executed and delivered by a Domestic Subsidiary in accordance with
the provisions of Section 7.12.


     “Laws” means, collectively, all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the


14






 


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


     “L/C Advance” means, with respect to each Lender, such Lender’s funding of
its participation in any L/C Borrowing in accordance with its Pro Rata Share.


     “L/C Borrowing” means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Borrowing of Revolving Loans.


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


     “L/C Issuer” means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.


     “L/C Issuer Policies” has the meaning assigned to such term in Section
2.03(a)(ii)(B).


     “L/C Obligations” means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.


     “Lender” means each of the Persons identified as a “Lender” on the
signature pages hereto and their successors and assigns and, as the context
requires, includes the L/C Issuer and the Swing Line Lender.


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


     “Letter of Credit” means any standby letter of credit issued under this
Agreement.


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


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


     “Letter of Credit Sublimit” means, at any time, an amount equal to the sum
of the Aggregate Revolving Commitments less $10,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Revolving
Commitments.


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


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


15






 


     “Loan Documents” means this Agreement, each Note, each Letter of Credit,
each Letter of Credit Application, each Joinder Agreement, the Collateral
Documents, each Request for Credit Extension, each Compliance Certificate, the
Fee Letter and each other document, instrument or agreement from time to time
executed by the Borrower or any Subsidiary or any Responsible Officer thereof
and delivered in connection with this Agreement.


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


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


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


     “Material Domestic Subsidiary” means any Domestic Subsidiary other than an
Immaterial Domestic Subsidiary.


     “Maturity Date” means July 10, 2007.


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


     “Mortgage Instruments” means all mortgages, deeds of trust or deeds to
secure debt given by any Loan Party to secure the Obligations, in each case as
amended, modified, restated and supplemented from time to time.


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


     “Non-Guarantor Subsidiaries” means Orbital International, Inc., Orbital
Communications Corporation and Orbital Holdings Corporation.


     “Note” or “Notes” means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.


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


16






 


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


     “Outstanding Amount” means (i) with respect to any Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of any Loans occurring on such date;
and (ii) with respect to any L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension
occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under any Letters of Credit or any reductions in
the maximum amount available for drawing under Letters of Credit taking effect
on such date.


     “Participant” has the meaning specified in Section 11.07(d).


     “Payment Account” means (a) for the period from the Closing Date to the
date forty-five days after the Closing Date, (i) the Wells Fargo Account
provided such account is within five (5) Business Days after the Closing Date
and at all times thereafter subject to a control agreement reasonably
satisfactory to the Administrative Agent and (ii) any account maintained by the
Borrower with Bank of America and (b) thereafter, (i) any bank account
maintained by the Borrower with Bank of America and (ii) any bank account
maintained with another bank subject to a control agreement reasonably
satisfactory to the Administrative Agent.


     “PBGC” means the Pension Benefit Guaranty Corporation.


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


     “Permitted Acquisitions” means Investments consisting of an Acquisition by
the Borrower or any Subsidiary, provided that (i) the Property acquired (or the
Property of the Person acquired) in such Acquisition is used or useful in the
same or a similar line of business as the Borrower and its Subsidiaries were
engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (ii) in the case of an Acquisition of the Capital Stock of another
Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (iii) the Borrower
shall have delivered to the Administrative Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such Acquisition on a Pro
Forma Basis, the Loan Parties would be in compliance with the financial
covenants set forth in Section 8.11 as of the most recent fiscal quarter for
which the Borrower has delivered financial statements pursuant to Section
7.01(a) or (b), (iv) the representations and warranties made by the Loan
Parties in any Loan Document shall be true and correct in all material respects
at and as if made as of the date of such Acquisition (after giving effect
thereto) except to the extent such representations and warranties expressly
relate to an earlier date, (v) if such transaction involves the purchase of an
interest in


17






 


a partnership between the Borrower (or a Subsidiary) as a general partner
and entities unaffiliated with the Borrower or such Subsidiary as the other
partners, such transaction shall be effected by having such equity interest
acquired by a corporate holding company directly or indirectly wholly-owned by
the Borrower newly formed for the sole purpose of effecting such transaction,
(vi) after giving effect to such Acquisition, there shall be at least
$5,000,000 of availability existing under the Aggregate Revolving Commitments,
(vii) the Total Consideration for any such Acquisition shall not exceed
$15,000,000 and (viii) the Total Consideration for all such Acquisitions shall
not exceed $30,000,000 during the term of this Agreement.


     “Permitted Investments” means, at any time, Investments by the Borrower
and its Subsidiaries permitted to exist at such time pursuant to the terms of
Section 8.02.


     “Permitted Liens” means, at any time, Liens in respect of Property of the
Borrower and its Subsidiaries permitted to exist at such time pursuant to the
terms of Section 8.01.


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


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


     “Pledge Agreement” means the pledge agreement dated as of the Closing Date
executed in favor of the Administrative Agent by each of the Loan Parties, as
amended, modified, restated or supplemented from time to time.


     “Pro Forma Basis” means that any Disposition, Involuntary Disposition,
Restricted Payment or Acquisition shall be deemed to have occurred as of the
first day of the most recent four fiscal quarter period preceding the date of
such transaction for which the Borrower has delivered financial statements
pursuant to Section 7.01(a) or (b). In connection with the foregoing, (a) with
respect to any Disposition or Involuntary Disposition, income statement and
cash flow statement items (whether positive or negative) attributable to the
Property disposed of shall be excluded to the extent relating to any period
occurring prior to the date of such transaction, and (b) with respect to any
Acquisition, income statement items attributable to the Person or Property
acquired shall be included to the extent relating to any period applicable in
such calculations to the extent (i) such items are not otherwise included in
such income statement items for the Borrower and its Subsidiaries in accordance
with GAAP or in accordance with any defined terms set forth in Section 1.1 and
(ii) such items are supported by financial statements or other information
reasonably satisfactory to the Administrative Agent.


     “Pro Forma Compliance Certificate” means a certificate of a Responsible
Officer of the Borrower containing reasonably detailed calculations of the
financial covenants set forth in Section 8.11 as of the most recent fiscal
quarter end for which the Borrower has delivered financial statements pursuant
to Section 7.01(a) or (b) after giving effect to the applicable transaction on
a Pro Forma Basis.


     “Pro Forma Statements” has the meaning specified in Section 5.01(e).


     “Pro Rata Share” means, as to each Lender, a fraction (expressed as a
percentage, carried out to the ninth decimal place), the numerator of which is
the amount of the Revolving Commitment of such Lender at such time and the
denominator of which is the amount of the Aggregate Revolving Commitments at
such time; provided that if the commitment of each Lender to make Revolving
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 9.02, then the Pro Rata Share of each
Lender shall be determined based on the Pro Rata Share of


18






 


such Lender immediately prior to such termination and after giving effect
to any subsequent assignments made pursuant to the terms hereof. The initial
Pro Rata Share of each Lender is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.


     “Property” means any interest of any kind in any property or asset,
whether real, personal or mixed, or tangible or intangible.


     “Receivables” has the meaning set forth in the definition of “Eligible
Receivables”.


     “Register” has the meaning set forth in Section 11.07(c).


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


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


     “Required Lenders” means, at any time, Lenders holding in the aggregate at
least seventy-five percent (75%) of (a) the Revolving Commitments or (b) if the
Revolving Commitments have been terminated, the outstanding Loans, L/C
Obligations and participations therein. The Revolving Commitments of any
Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.


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


     “Restricted Payment” means any dividend or other distribution (whether in
cash, securities or other Property) with respect to any Capital Stock of the
Borrower or any Subsidiary, or any payment (whether in cash, securities or
other Property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such Capital Stock or of any option, warrant or other right to acquire
any such Capital Stock.


     “Revolving Commitment” means, as to each Lender, its obligation to (a)
make Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in Swing
Line Loans, in an aggregate principal amount at any one time outstanding not to
exceed the amount set forth opposite such Lender’s name on Schedule 2.01 (as
such Schedule may be amended pursuant to Section 2.01(b)) or in the Assignment
and Assumption pursuant to which such Lender becomes a party hereto, as
applicable, as such amount may be adjusted from time to time in accordance with
this Agreement.


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


     “Revolving Note” has the meaning specified in Section 2.11(a).


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


19






 


     “Sale and Leaseback Transaction” means, with respect to the Borrower or
any Subsidiary, any arrangement, directly or indirectly, with any person
whereby the Borrower or such Subsidiary shall sell or transfer any Property
used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such Property.


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


     “Securitization Transaction” means any financing transaction or series of
financing transactions (including factoring arrangements) pursuant to which the
Borrower or any Subsidiary may sell, convey or otherwise transfer, or grant a
security interest in, accounts, payments, receivables, rights to future lease
payments or residuals or similar rights to payment to a special purpose
Subsidiary or Affiliate or any other Person.


     “Security Agreement” means the security agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties,
as amended, modified, restated or supplemented from time to time.


     “Senior Note Documents” means the Senior Notes, the Senior Note Indenture,
the Senior Note Purchase Agreement, the Senior Note Registration Rights
Agreement and all other documents, instruments and agreements relating thereto.


     “Senior Note Indenture” means the Indenture dated as of July 10, 2003
between the Borrower and US Bank, National Association, as trustee.


     “Senior Note Purchase Agreement” means the Purchase Agreement dated as of
July 10, 2003 among the Borrower and the initial purchasers of the Senior
Notes.


     “Senior Note Registration Rights Agreement” means the Registration Rights
Agreement dated as of July 10, 2003 among the Borrower and the initial
purchasers of the Senior Notes.


     “Senior Notes” means those 9% Senior Notes of the Borrower due July 15,
2011.


     “Specified Letters of Credit” means, collectively, (a) the letters of
credit outstanding on the Closing Date and identified on Schedule 8.03-2
(including any increase in the principal amount thereof to the extent permitted
under Section 8.03(b)), (b) the letters of credit denominated in a currency
other than Dollars to the extent permitted under Section 8.03(g), and (c) the
letters of credit issued pursuant to Section 8.03(k).


     “Subsidiary” of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of Capital Stock having ordinary voting power for the election of
directors or other governing body (other than Capital Stock having such power
only by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person. Unless
otherwise specified, all references herein to a “Subsidiary” or to
“Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.
The term “Subsidiary” shall not include Orbital Imaging Corporation.


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


20






 


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


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


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


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


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


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


     “Swing Line Note” has the meaning specified in Section 2.11(a).


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


     “Synthetic Lease” means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing
arrangement whereby the arrangement is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease or does not otherwise
appear on the balance sheet under GAAP.


     “Threshold Amount” means $5,000,000.


     “Total Consideration” means, with respect to any Acquisition, the
aggregate cash and non-cash consideration for such Acquisition (including the
principal amount of any Indebtedness assumed and the Borrower’s reasonable and
good faith projections of the aggregate amount of any contingent payments
(including earn-out payments) that the Borrower or any Subsidiary will
ultimately have to pay in connection


21






 


with such Acquisition, but specifically excluding the amount of any
Capital Stock of the Borrower issued to the seller).


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


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


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


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


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


     “Voting Stock” means, 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 a contingency.


     “Wells Fargo Account” means, collectively, deposit account numbers
4950050062, 4950050070, 4950050054 at Wells Fargo Bank, N.A. and the lockbox
arrangements with Regulus West LLC.


     “Wholly Owned Subsidiary” means any Person 100% of whose Capital Stock is
at the time owned by the Borrower directly or indirectly through other Persons
100% of whose Capital Stock is at the time owned, directly or indirectly, by
the Borrower.


     1.02 Other Interpretive Provisions.


     With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:



		
	 	     (a)     The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.




		
	 	     (b)     (i)     The words “herein,” “hereto,” “hereof” and “hereunder” and
words of similar import when used in any Loan Document shall refer
to such Loan Document as a whole and not to any particular
provision thereof.




		
	 	        (ii)     Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.




		
	 	        (iii)   The term “including” is by way of example and not
limitation.




		
	 	        (iv)     The term “documents” includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in
physical or electronic form.



22






 







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




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



     1.03 Accounting Terms.


     (a)  Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in
conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement
shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in
preparing the most recent Audited Financial Statements; provided, however, that
calculations of Attributable Indebtedness under any Synthetic Lease or the
implied interest component of any Synthetic Lease shall be made by the Borrower
in accordance with accepted financial practice and consistent with the terms of
such Synthetic Lease.


     (b)  The Borrower will provide a written summary of any material changes in
GAAP and in the consistent application thereof with each annual and quarterly
Compliance Certificate delivered in accordance with Section 7.02(a). If at any
time any change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio or requirement
to preserve the original intent thereof in light of such change in GAAP
(subject to the approval of the Required Lenders); provided that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.


     (c)  Notwithstanding the above, the parties hereto acknowledge and agree
that all calculations of the Consolidated Total Leverage Ratio (including for
purposes of determining the Applicable Rate), the Consolidated Senior Secured
Leverage Ratio and Consolidated Net Worth shall be made on a Pro Forma Basis.


     1.04 Rounding.


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


     1.05 References to Agreements and Laws.


     Unless otherwise expressly provided herein, (a) references to Organization
Documents, agreements (including the Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
extensions, supplements and other modifications thereto, but only to the extent
that such amendments, restatements, extensions, supplements and other
modifications


23






 


are not prohibited by any Loan Document; and (b) references to any Law
shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.


     1.06 Times of Day.


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


     1.07 Letter of Credit Amounts.


     Unless otherwise specified, all references herein to the amount of a
Letter of Credit at any time shall be deemed to mean the maximum face amount of
such Letter of Credit after giving effect to all increases thereof contemplated
by such Letter of Credit or the Letter of Credit Application therefor, whether
or not such maximum face amount is in effect at such time.


ARTICLE II



THE COMMITMENTS AND CREDIT EXTENSIONS



     2.01 Revolving Loans.


     (a)  Revolving Loans. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make loans (each such loan, a
“Revolving Loan”) to the Borrower in Dollars from time to time on any Business
Day during the Availability Period in an aggregate outstanding amount not to
exceed at any time the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Borrowing of Revolving Loans, (i) the
Total Revolving Outstandings shall not exceed the lesser of (A) the Aggregate
Revolving Commitments or (B) the Borrowing Base, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro
Rata Share of the Outstanding Amount of all L/C Obligations, plus such Lender’s
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed the lesser of (A) such Lender’s Revolving Commitment and (B) an amount
equal to such Lender’s Pro Rata Share times the Borrowing Base. Within the
limits of each Lender’s Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01, prepay
under Section 2.05, and reborrow under this Section 2.01. Revolving Loans may
be Base Rate Loans or Eurodollar Rate Loans, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be made as
Base Rate Loans.


     (b)  Additional Revolving Commitments. The Borrower may at any time, upon
prior written notice by the Borrower to the Administrative Agent, increase the
Aggregate Revolving Commitments by up to TWENTY-FIVE MILLION DOLLARS
($25,000,000) with additional Revolving Commitments from any existing Lender or
new Revolving Commitments from any other Person selected by the Borrower and
approved by the Administrative Agent (which approval shall not be unreasonably
withheld or delayed); provided that:



		
	 	     (i)     any such increase shall be in a minimum principal amount of $5
million and in integral multiples of $5 million in excess thereof;




		
	 	     (ii)     no Default shall be continuing at the time of any such
increase;




		
	 	     (iii)     no existing Lender shall be under any obligation to increase
its Revolving Commitment and any such decision whether to increase its
Revolving Commitment shall be in such Lender’s sole and absolute
discretion; and



24






 







		
	 	     (iv)     any new Lender shall join this Agreement by executing such
joinder documents reasonably required by the Administrative Agent (but no
consent from any existing Lender (other than any consent described in
(iii) above from any Lender that is increasing its Revolving Commitment)
shall be necessary in connection with the exercise of the Borrower’s
rights hereunder).



     In connection with any such increase in the Aggregate Revolving
Commitments, Schedule 2.01 shall be revised by the Administrative Agent to
reflect the new Revolving Commitments and shall be distributed to the Lenders.


     2.02 Borrowings, Conversions and Continuations of Loans.


     (a)  Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Eurodollar Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given
by telephone. Each such notice must be received by the Administrative Agent
not later than 11:00 a.m. (i) three Business Days prior to the requested date
of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or
of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans. Each telephonic notice by
the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess
thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Borrowing of
or conversion to Base Rate Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
Borrowing, a conversion of Loans from one Type to the other, or a continuation
of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion
or continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Loans to be borrowed, converted or continued, (iv) the Type
of Loans to be borrowed or to which existing Loans are to be converted, and (v)
if applicable, the duration of the Interest Period with respect thereto. If
the Borrower fails to specify a Type of Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall be made as, or converted to, Base Rate Loans.
Any such automatic conversion to Base Rate Loans shall be effective as of the
last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to,
or continuation of Eurodollar Rate Loans in any such Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.


     (b)  Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender of the amount of its Pro Rata Share of the
applicable Loans, and if no timely notice of a conversion or continuation is
provided by the Borrower, the Administrative Agent shall notify each Lender of
the details of any automatic conversion to Base Rate Loans described in the
preceding subsection. In the case of a Borrowing, each Lender shall make the
amount of its Loan available to the Administrative Agent in immediately
available funds at the Administrative Agent’s Office not later than 1:00 p.m.
on the Business Day specified in the applicable Loan Notice. Upon satisfaction
of the applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the Borrower
on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date of a Borrowing of Revolving Loans,
there are Swing



25










 



Line Loans or L/C Borrowings
outstanding, then the proceeds of such Borrowing shall be applied,
first, to the payment in full of any such L/C Borrowings,
second, to the payment in full of any such Swing Line Loans,
and third, to the Borrower as provided above.


     (c)     Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, (i) no Loans may be
requested as, converted to or continued as Eurodollar Rate Loans without the
consent of the Required Lenders and (ii) the Required Lenders may demand that
any or all of the then outstanding Eurodollar Rate Loans be converted
immediately to Base Rate Loans.


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


     (e)     After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than six (6) Interest Periods in effect with respect to
Revolving Loans.


     2.03     Letters of Credit.


     (a)     The Letter of Credit Commitment.



		
	 	     (i)     Subject to the terms and conditions set forth herein, (A) the
L/C Issuer agrees, in reliance upon the agreements of the other Lenders
set forth in this Section 2.03, (1) from time to time
on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit in Dollars
for the account of the Borrower or any of its Subsidiaries, and to amend
or renew Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drafts under the Letters of
Credit; and (B) the Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower;
provided that the L/C Issuer shall not be obligated to
make any L/C Credit Extension with respect to any Letter of Credit, and
no Lender shall be obligated to participate in any Letter of Credit if as
of the date of such L/C Credit Extension, (x) the Total Revolving
Outstandings would exceed the lesser of the Aggregate Revolving
Commitments and the Borrowing Base, (y) the aggregate Outstanding Amount
of the Revolving Loans of any Lender, plus such
Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations,
plus such Lender’s Pro Rata Share of the Outstanding
Amount of all Swing Line Loans would exceed the lesser of such Lender’s
Revolving Commitment and an amount equal to such Lender’s Pro Rata Share
times the Borrowing Base or (z) the Outstanding Amount
of the L/C Obligations would exceed the Letter of Credit Sublimit.
Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully
revolving, and accordingly the Borrower may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that have expired
or that have been drawn upon and reimbursed.




		
	 	     (ii)     The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:




		
	 	     (A)     any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
Law applicable to the L/C Issuer or any request or directive



26






 







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




		
	 	     (B)     the issuance of such Letter of Credit would violate one or
more policies of the L/C Issuer applicable to borrowers generally
(“L/C Issuer Policies”); or




		
	 	     (C)     such Letter of Credit is in an initial amount less than
$10,000 or is to be denominated in a currency other than Dollars.




		
	 	     (iii)     The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (B) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
	 
	 	     (iv)     The L/C Issuer shall be under no obligation to issue or amend
any Letter of Credit if the L/C Issuer has received written notice from
any Lender, the Administrative Agent or any Loan Party, on or prior to
the Business Day prior to the requested date of issuance or amendment of
such Letter of Credit, that one or more applicable conditions contained
in Article V shall not then be satisfied.



     (b)     Procedures for Issuance and Amendment of Letters of Credit;
Auto-Renewal Letters of Credit.



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




		
	 	     (ii)     Promptly after receipt of any Letter of Credit Application, the
L/C Issuer will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has received a copy of such Letter
of Credit Application from the Borrower and, if not, the L/C



27






 







		
	 	Issuer will
provide the Administrative Agent with a copy thereof. Upon receipt by
the L/C Issuer of confirmation from the Administrative Agent that the
requested issuance or amendment is permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of
the Borrower or enter into the applicable amendment, as the case may be,
in each case in accordance with the L/C Issuer’s usual and customary
business practices. Immediately upon the issuance of each Letter of
Credit, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product
of such Lender’s Pro Rata Share times the amount of
such Letter of Credit.




		
	 	     (iii)     If the Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic renewal provisions
(each, an “Auto-Renewal Letter of
Credit”); provided that any such
Auto-Renewal Letter of Credit must permit the L/C Issuer to prevent any
such renewal at least once in each twelve-month period (commencing with
the date of issuance of such Letter of Credit) by giving prior notice to
the beneficiary thereof not later than a day (the “Nonrenewal
Notice Date”) in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer for any such renewal.
Once an Auto-Renewal Letter of Credit has been issued, the Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer to
permit the renewal of such Letter of Credit at any time to an expiry date
not later than the Letter of Credit Expiration Date;
provided, however, that the L/C
Issuer shall not permit any such renewal if (A) the L/C Issuer has
determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof (by reason of
the provisions of Section 2.03(a)(ii) or otherwise),
or (B) it has received notice (which may be by telephone or in writing)
on or before the day that is five Business Days before the Nonrenewal
Notice Date (1) from the Administrative Agent that the Required Lenders
have elected not to permit such renewal or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 5.02 is not then
satisfied.




		
	 	     (iv)     Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the L/C Issuer will also deliver to the
Borrower and the Administrative Agent a true and complete copy of such
Letter of Credit or amendment. The Administrative Agent shall provide
each Lender a quarterly report of the outstanding Letters of Credit and
the amount of each Lender’s respective participation therein.



     (c)     Drawings and Reimbursements; Funding of Participations.



		
	 	     (i)     Upon receipt from the beneficiary of any Letter of Credit of any
notice of drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than
11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an
amount equal to the amount of such drawing. If the Borrower fails to so
reimburse the L/C Issuer by such time, the Administrative Agent shall
promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and
the amount of such Lender’s Pro Rata Share thereof. In such event, the
Borrower shall be deemed to have requested a Borrowing of Base Rate Loans
to be disbursed on the Honor Date in an amount equal to the Unreimbursed
Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base



28






 







		
	 	Rate
Loans, but subject to the amount of the unutilized portion of the
Aggregate Revolving Commitments and the conditions set forth in
Section 5.02 (other than the delivery of a Loan
Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing;
provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of
such notice.




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




		
	 	     (iii)     With respect to any Unreimbursed Amount that is not fully
refinanced by a Borrowing of Base Rate Loans because the conditions set
forth in Section 5.02 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C
Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is
not so refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest at the Default Rate
(provided that if any amount of such L/C Borrowing is due to any Lender
failing to make its Pro Rata Share of a Base Rate Loan pursuant to
Section 2.03(c)(ii), then such amount of the L/C
Borrowing shall be due and payable on demand (together with interest) and
shall bear interest at (A) from the Honor Date to the second Business Day
after the Honor Date, the Base Rate plus the
Applicable Margin and (B) thereafter, the Default Rate). In such event,
each Lender’s payment to the Administrative Agent for the account of the
L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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




		
	 	     (v)     Each Lender’s obligation to make Revolving Loans or L/C Advances
to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be
absolute and unconditional and shall not be affected by any circumstance,
including (A) any set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the L/C Issuer, the Borrower or
any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or
condition, whether or not similar to any of the foregoing;
provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this
Section 2.03(c) is subject to the conditions set forth
in Section 5.02 (other than delivery by the Borrower
of a Loan Notice). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any
Letter of Credit, together with interest as provided herein.




		
	 	     (vi)     If any Lender fails to make available to the Administrative
Agent for the account of the L/C Issuer any amount required to be paid by
such Lender pursuant to the foregoing



29






 







		
	 	provisions of this Section
2.03(c) by the time specified in Section
2.03(c)(ii), the L/C Issuer shall be entitled to recover from
such Lender (acting through the Administrative Agent), on demand, such
amount with interest thereon for the period from the date such payment is
required to the date on which such payment is immediately available to
the L/C Issuer at a rate per annum equal to the Federal Funds Rate from
time to time in effect. A certificate of the L/C Issuer submitted to any
Lender (through the Administrative Agent) with respect to any amounts
owing under this clause (vi) shall be conclusive absent manifest error.



     (d)     Repayment of Participations.



		
	 	     (i)     At any time after the L/C Issuer has made a payment under any
Letter of Credit and has received from any Lender such Lender’s L/C
Advance in respect of such payment in accordance with Section
2.03(c), if the Administrative Agent receives for the account
of the L/C Issuer any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Pro Rata Share thereof (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such
Lender’s L/C Advance was outstanding) in the same funds as those received
by the Administrative Agent.
	 
	 	     (ii)   If any payment received by the Administrative Agent for the
account of the L/C Issuer pursuant to Section
2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.06 (including
pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the
account of the L/C Issuer its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand
to the date such amount is returned by such Lender, at a rate per annum
equal to the Federal Funds Rate from time to time in effect.



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



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




		
	 	     (ii)     the existence of any claim, counterclaim, set-off, defense or
other right that the Borrower may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the L/C
Issuer or any other Person, whether in connection with this Agreement,
the transactions contemplated hereby or by such Letter of Credit or any
agreement or instrument relating thereto, or any unrelated transaction;




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




		
	 	     (iv)     any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by
the L/C Issuer under such Letter of Credit to any Person purporting to be
a



30






 







		
	 	trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any Debtor
Relief Law; or




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



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


     (f)     Role of L/C Issuer. Each Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the L/C Issuer
shall not have any responsibility to obtain any document (other than any sight
draft, certificates and documents expressly required by the Letter of Credit)
or to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document. None of the L/C Issuer, any
Agent-Related Person or any of the respective correspondents, participants or
assignees of the L/C Issuer shall be liable to any Lender for (i) any action
taken or omitted in connection herewith at the request or with the approval of
the Lenders or the Required Lenders, as applicable; (ii) any action taken or
omitted in the absence of gross negligence or willful misconduct; or (iii) the
due execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit or Letter of Credit Application.
The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption
is not intended to, and shall not, preclude the Borrower’s pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, any Agent-Related Person,
nor any of the respective correspondents, participants or assignees of the L/C
Issuer, shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.03(e);
provided, however, that anything in such
clauses to the contrary notwithstanding, the Borrower may have a claim against
the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the
extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves were
caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s)
strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary,
and the L/C Issuer shall not be responsible for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


     (g)     Cash Collateral; Replacement.



		
	 	     (i)     Upon the request of the Administrative Agent or the Required
Lenders, (i) if the L/C Issuer has honored any full or partial drawing
request under any Letter of Credit and such drawing has resulted in an
L/C Borrowing, or (ii) if, as of the Maturity Date, (A) any Letter of
Credit may for any reason remain outstanding and partially or wholly
undrawn or (B) any amount remains available to be drawn under any Letter
of Credit by reason of the operation of Section 3.14 of the
“International Standby Practices 1998” published by the Institute of
International



31






 







		
	 	Banking Law & Practice (or such later version thereof as
may be in effect at the time of issuance), the Borrower shall immediately
Cash Collateralize the then Outstanding Amount of all L/C Obligations (in
an amount equal to such Outstanding Amount determined as of the date of
such L/C Borrowing or the Maturity Date, as the case may be). For
purposes hereof, “Cash Collateralize” means to pledge
and deposit with or deliver to the Administrative Agent, for the benefit
of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer
(which documents are hereby consented to by the Lenders). Derivatives of
such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders,
a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash collateral shall be
maintained in blocked, interest bearing deposit accounts at Bank of
America. All interest on such cash collateral shall be paid as follows:
(i) if such cash collateral is delivered to the Administrative Agent by
the Borrower pursuant to any of Sections 2.03(g)(i),
2.05 or 9.02, then such interest
shall be paid to the Borrower upon the Borrower’s request,
provided that such interest shall first be applied to
all outstanding Obligations at such time and the balance shall be
distributed to the Borrower, and (ii) if such cash collateral is
delivered to the Administrative Agent by the Borrower at any time that
such cash collateral is not required to be delivered under this Agreement,
then such interest shall be distributed to the Borrower (provided that if
at any time after such delivery of cash collateral the Borrower would
have been required to deliver cash collateral pursuant to any of
Sections 2.03(g)(i), 2.05 or
9.02, the interest shall be applied as provided in
clause (i)).




		
	 	     (iii)     If, as of the Maturity Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn and the
Borrower Cash Collateralizes such Letter of Credit pursuant to clause (i)
above, the Borrower agrees to replace such Letter of Credit with a new
letter of credit issued under any replacement credit facility entered
into by the Borrower with sixty days after the closing of such
replacement credit facility.



     (h)     Applicability of ISP98. Unless otherwise expressly
agreed by the L/C Issuer and the Borrower when a Letter of Credit is issued,
the rules of the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance) shall apply to each Letter
of Credit.


     (i)     Letter of Credit Fees. The Borrower shall pay to
the Administrative Agent for the account of each Lender in accordance with its
Pro Rata Share a Letter of Credit fee for each Letter of Credit equal to the
Applicable Rate for Eurodollar Loans times the daily maximum
amount available to be drawn under such Letter of Credit (it being understood
that for purposes of computation of the Letter of Credit fee the maximum amount
available to be drawn under such Letter of Credit for any day shall be the
maximum amount actually available to be drawn under such Letter of Credit on
such day). Such letter of credit fees shall be computed on a quarterly basis
in arrears. Such letter of credit fees shall be due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand.
If there is any change in the Applicable Rate during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such
Applicable Rate was in effect.


     (j)     Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to the L/C Issuer for its own
account a fronting fee with respect to each Letter of Credit in the amounts and
at the times specified in the Fee Letter. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing


32






 


fees, and other standard costs and
charges, of the L/C Issuer relating to letters of credit as from time to time
in effect. Such customary fees and standard costs and charges are due and
payable on demand and are nonrefundable.


     (k)     Conflict with Letter of Credit Application. In the
event of any conflict between the terms hereof and the terms of any Letter of
Credit Application, the terms hereof shall control.


     2.04     Swing Line Loans.


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


     (b)     Borrowing Procedures. Each Borrowing of Swing Line
Loans shall be made upon the Borrower’s irrevocable notice to the Swing Line
Lender and the Administrative Agent, which may be given by telephone. Each
such notice must be received by the Swing Line Lender and the Administrative
Agent not later than 1:00 p.m. on the requested borrowing date, and shall
specify (i) the amount to be borrowed, which shall be a minimum principal
amount of $500,000, or a whole multiple of $100,000 in excess thereof, and (ii)
the requested borrowing date, which shall be a Business Day. Each such
telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Promptly after receipt by the Swing Line Lender of any telephonic Swing Line
Loan Notice, the Swing Line Lender will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the
Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Lender) prior to
2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A)
directing the Swing Line Lender not to make such Swing Line Loan as a result of
the limitations set forth in the proviso to the first sentence of
Section 2.04(a), or (B) that one or more of the applicable
conditions specified in Article V is not then satisfied,
then, subject to the terms and conditions hereof, the Swing Line Lender will,
not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.


33






 


     (c)     Refinancing of Swing Line Loans.



		
	 	     (i)     The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby
irrevocably requests and authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Base Rate Loan in an amount equal
to such Lender’s Pro Rata Share of the amount of any Swing Line Loan then
outstanding. Such request shall be made in writing (which written
request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the
principal amount of Base Rate Loans, but subject to the unutilized
portion of the Aggregate Revolving Commitments and the conditions set
forth in Section 5.02. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender
shall make an amount equal to its Pro Rata Share of the amount specified
in such Loan Notice available to the Administrative Agent in immediately
available funds for the account of the Swing Line Lender at the
Administrative Agent’s Office not later than 1:00 p.m. on the day
specified in such Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.




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




		
	 	     (iii)     If any Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be
paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be
entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from
the date such payment is required to the date on which such payment is
immediately available to the Swing Line Lender at a rate per annum equal
to the Federal Funds Rate from time to time in effect. A certificate of
the Swing Line Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent manifest error.




		
	 	     (iv)     Each Lender’s obligation to make Revolving Loans or to purchase
and fund risk participations in Swing Line Loans pursuant to this
Section 2.04(c) shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right that such Lender may
have against the Swing Line Lender, the Borrower or any other Person for
any reason whatsoever, (B) the occurrence or continuance of a Default, or
(C) any other occurrence, event or condition, whether or not similar to
any of the foregoing; provided,
however, that each Lender’s obligation to make
Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02.
No such purchase or funding of risk participations shall relieve or
otherwise impair the obligation of the Borrower to repay Swing Line
Loans, together with interest as provided herein.



     (d)     Repayment of Participations.


34






 



		
	 	     (i)     At any time after any Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s risk participation was funded)
in the same funds as those received by the Swing Line Lender.




		
	 	     (ii)     If any payment received by the Swing Line Lender in respect of
principal or interest on any Swing Line Loan is required to be returned
by the Swing Line Lender under any of the circumstances described in
Section 11.06 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender
shall pay to the Swing Line Lender its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon
from the date of such demand to the date such amount is returned, at a
rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender.



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


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


     2.05     Prepayments.


     (a)     Voluntary Prepayments of Loans.



		
	 	     (i)     Revolving Loans. The Borrower may, upon
notice from the Borrower to the Administrative Agent, at any time or from
time to time voluntarily prepay Revolving Loans in whole or in part
without premium or penalty; provided that (i) such
notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate
Loans; (ii) any such prepayment of Eurodollar Rate Loans shall be in a
principal amount of $1,000,00 or a whole multiple of $500,000 in excess
thereof (or, if less, the entire principal amount thereof then
outstanding); (iii) any such prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal amount thereof then
outstanding). Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative
Agent will promptly notify each Lender of its receipt of each such
notice, and of the amount of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein. Any prepayment
of a Eurodollar Rate Loan shall be accompanied by all accrued interest
thereon. Each such prepayment shall be applied to the Loans of the
Lenders in accordance with their respective Pro Rata Shares.




		
	 	     (ii)     Swing Line Loans. The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line
Loans in whole or in part without premium or penalty;
provided that (i) such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m.



35






 







		
	 	on the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof (or, if less, the entire principal amount thereof then
outstanding). Each such notice shall specify the date and amount of such
prepayment. If such notice is given by the Borrower, the Borrower shall
make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.



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


     2.06     Termination or Reduction of Aggregate Revolving
Commitments.


     The Borrower may, upon notice from the Borrower to the Administrative
Agent, terminate the Aggregate Revolving Commitments or from time to time
permanently reduce the Aggregate Revolving Commitments to an amount not less
than the Total Revolving Outstandings; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00
a.m. five Business Days prior to the date of termination or reduction and (ii)
any such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof. The Administrative Agent will
promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Revolving Commitments. Any reduction of the Aggregate Revolving
Commitments shall be applied to the Revolving Commitment of each Lender
according to its Pro Rata Share. All commitment fees accrued until the
effective date of any termination of the Aggregate Revolving Commitments shall
be paid on the effective date of such termination.


     2.07     Repayment of Loans.


     (a)     The Borrower shall repay the aggregate outstanding principal amount of
all Revolving Loans on the Maturity Date.


     (b)     The Borrower shall repay the outstanding principal amount of each
Swing Line Loan on the earlier to occur of (i) the date seven (7) days after
such Swing Line Loan is made, (ii) demand by the Swing Line Lender and (iii)
the Maturity Date.


     2.08     Interest.


     (a)     Subject to the provisions of subsection (b) below, (i) each Eurodollar
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the sum of (A) the Eurodollar
Rate for such Interest Period plus (B) the Applicable Rate;
(ii) each Base Rate Loan (including each Swing Line Loan) shall bear interest
on the outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the
Applicable Rate.


     (b)     Upon the occurrence and during the continuation of an Event of
Default, the Borrower shall pay interest on the principal amount of all
outstanding Obligations at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.


36






 


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


     2.09     Fees.


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



		
	 	     (a)     Commitment Fee. The Borrower shall pay to
the Administrative Agent for the account of each Lender in accordance
with its Pro Rata Share, a commitment fee equal to
the product of (i) the Applicable Rate times (ii)
the actual daily amount by which the Aggregate Revolving Commitments
exceed the sum of (A) the Outstanding Amount of Revolving Loans and (B)
the Outstanding Amount of L/C Obligations (it being understood that for
purposes of computation of the commitment fee (x) the maximum amount
available to be drawn under any Letter of Credit for any day shall be the
maximum amount actually available to be drawn under such Letter of Credit
on such day and (y) the Outstanding Amount of Swing Line Loans shall not
be considered usage). The commitment fee shall accrue at all times during
the Availability Period, including at any time during which one or more
of the conditions in Article V is not met, and shall
be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date
to occur after the Closing Date, and on the Maturity Date. The commitment
fee shall be calculated quarterly in arrears, and if there is any change
in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each
period during such quarter that such Applicable Rate was in effect.




		
	 	     (b)     Other Fees.




		
	 	     (i)     The Borrower shall pay to the Arranger and the
Administrative Agent for their own respective accounts fees in the
amounts and at the times specified in the Fee Letter. Such fees
shall be fully earned when paid and shall be non-refundable for any
reason whatsoever.




		
	 	     (ii)     The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at
the times so specified. Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.



     2.10     Computation of Interest and Fees.


     All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America’s “prime rate” shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as
applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall, subject to Section
2.12(a), bear interest for one day.


37






 


     2.11     Evidence of Debt.


     (a)     The Revolving Loans made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained
by the Administrative Agent and each Lender shall be conclusive absent manifest
error of the amount of the Revolving Loans made by the Lenders to the Borrower
and the interest and payments thereon. Any failure to so record or any error
in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall
control in the absence of manifest error. Upon the request of any Lender made
through the Administrative Agent, the Borrower shall execute and deliver to
such Lender (through the Administrative Agent) a promissory note, which shall
evidence such Lender’s Loans in addition to such accounts or records (provided
that only the Swing Line Lender may request a Swing Line
Note). Each such promissory note shall (i) in the case of Revolving
Loans, be in the form of Exhibit C-1 (a “Revolving
Note”), and (ii) in the case of Swing Line Loans, be in the form of
Exhibit C-2 (a “Swing Line Note”). Each
Lender may attach schedules to its Note and endorse thereon the date, Type (if
applicable), amount and maturity of its Loans and payments with respect
thereto.


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


     2.12     Payments Generally.


     (a)     All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s
Office in Dollars and in immediately available funds not later than 2:00 p.m.
on the date specified herein. The Administrative Agent will promptly
distribute to each Lender its Pro Rata Share (or other applicable share as
provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative
Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue.


     (b)     Subject to the definition of “Interest Period”, if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


     (c)     If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i)
first, toward costs and expenses (including Attorney Costs
and amounts payable under Article III) incurred by the
Administrative Agent and each Lender, (ii) second, toward
repayment 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 (iii) third, toward repayment of
principal and


38






 


L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.


     (d)     Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that
the Borrower or such Lender, as the case may be, has timely made such payment
and may (but shall not be so required to), in reliance thereon, make available
a corresponding amount to the Person entitled thereto. If and to the extent
that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:



		
	 	     (i)     if the Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made
available to such Lender in immediately available funds, together with
interest thereon in respect of each day from and including the date such
amount was made available by the Administrative Agent to such Lender to
the date such amount is repaid to the Administrative Agent in immediately
available funds at the Federal Funds Rate from time to time in effect;
and




		
	 	     (ii)     if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the
period from the date such amount was made available by the Administrative
Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent’s demand therefor, the Administrative Agent
may make a demand therefor upon the Borrower, and the Borrower shall pay
such amount to the Administrative Agent, together with interest thereon
for the Compensation Period at a rate per annum equal to the rate of
interest applicable to the applicable Borrowing. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Revolving
Commitment or to prejudice any rights which the Administrative Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.



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


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


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


39






 


     (g)     Subject to Section 3.01(e), nothing herein shall be
deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place
or manner.


     2.13     Sharing of Payments.


     If, other than as expressly provided elsewhere herein, any Lender shall
obtain on account of the Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it (but not including any amounts
applied by the Swing Line Lender to outstanding Swing Line Loans), any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Loans made by them and/or such subparticipations in the participations
in L/C Obligations or Swing Line Loans held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment
in respect of such Loans or such participations, as the case may be, pro rata
with each of them; provided, however, that if
all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section
11.06 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender’s ratable share (according to the proportion of (i) the amount of such
paying Lender’s required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may exercise all rights of a Lender hereunder
with respect to the amount of such participation as if such Lender were the
direct creditor of the Borrower in the amount of such participation. The
Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases
or repayments. Each Lender that purchases a participation pursuant to this
Section shall from and after such purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement
with respect to the portion of the Obligations purchased to the same extent as
though the purchasing Lender were the original owner of the Obligations
purchased.


ARTICLE III



TAXES, YIELD PROTECTION AND ILLEGALITY



     3.01     Taxes.


     (a)     Subject to Section 11.15, any and all payments by
any Loan Party to or for the account of the Administrative Agent or any Lender
under any Loan Document shall be made free and clear of and without deduction
for any and all present or future taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as
“Taxes”). If any Loan Party shall be required by any Laws
to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent or any Lender, (i) the sum payable


40






 


shall
be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section), each of the Administrative Agent and such Lender receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Loan Party shall make such deductions, (iii) such Loan Party shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within thirty days after the date of
such payment, such Loan Party shall furnish to the Administrative Agent (which
shall forward the same to such Lender) the original or a certified copy of a
receipt evidencing payment thereof or if no receipt is available, other
evidence of payment reasonably satisfactory to the Administrative Agent.


     (b)     In addition, the Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).


     (c)     If the Borrower shall be required to deduct or pay any Taxes or Other
Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time
interest is paid, such additional amount that the Administrative Agent or such
Lender specifies is necessary to preserve the after-tax yield (after factoring
in all taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.


     (d)     The Borrower agrees to indemnify the Administrative Agent and each
Lender for (i) the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by the Administrative Agent and such Lender, (ii) amounts
payable under Section 3.01(c) and (iii) any liability
(including additions to tax, penalties, interest and expenses) arising
therefrom or with respect thereto, in each case whether or not such Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. Payment under this subsection (d) shall be made within
thirty days after the date the Lender or the Administrative Agent makes a
demand therefor.


     (e)     If any Loan Party is required to pay any amount to any Lender or the
Administrative Agent pursuant to this Section 3.01, then such Lender shall use
reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of its Lending Office so as to eliminate any such
additional payment which may thereafter accrue, if such change in the
reasonable judgment of such Lender is not otherwise disadvantageous to such
Lender.


     (f)     If the Borrower determines in good faith that a reasonable basis
exists for contesting any Taxes for which indemnification has been demanded
hereunder or on account of which the Borrower’s payment to a Lender has been
increased hereunder, the relevant Lender or the Administrative Agent, as
applicable, shall cooperate with the Borrower in challenging such Taxes at the
Borrower’s expense if so requested by the Borrower in writing.


     3.02     Illegality.


     If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
any obligation of such


41






 


Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt
of such notice, the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable, convert all Eurodollar
Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such
Eurodollar Rate Loans to such day, or immediately, if such Lender may not
lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the
amount so prepaid or converted. Each Lender agrees to designate a different
Lending Office if such designation will avoid the need for such notice,
prepayment or conversion and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.


     3.03     Inability to Determine Rates.


     If the Administrative Agent determines in good faith that adequate and
reasonable means do not exist for determining the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan, or
that the Eurodollar Base Rate for any requested Interest Period with respect to
a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost
to the Lenders of funding such Loan, the Administrative Agent will promptly
notify the Borrower and all Lenders. Thereafter, the obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.


     3.04     Increased Cost and Reduced Return; Capital
Adequacy.


     (a)     If any Lender determines in good faith that as a result of the
introduction of or any change in or in the interpretation of any Law, or such
Lender’s compliance therewith, there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Loans or (as the case may be) issuing or participating in Letters of Credit, or
a reduction in the amount received or receivable by such Lender in connection
with any of the foregoing (excluding for purposes of this subsection (a) any
such increased costs or reduction in amount resulting from (i) Taxes or Other
Taxes (as to which Section 3.01 shall govern), (ii) changes
in the basis of taxation of overall net income or overall gross income by the
United States or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements utilized, as to Eurodollar Rate
Loans, in the determination of the Eurodollar Rate), then from time to time
upon demand of such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such increased cost or reduction.


     (b)     If any Lender determines in good faith that the introduction of any
Law regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender’s
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender’s desired return on capital), then from time
to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.


42






 


     3.05     Funding Losses.


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



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




		
	 	     (b)     any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any
Loan other than a Base Rate Loan on the date or in the amount notified by
the Borrower; or
	 
	 	     (c)     any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 11.16;
	 
	 	including any loss of reasonably anticipated profits and any loss or
expense arising from the liquidation or reemployment of funds obtained by
it to maintain such Loan or from fees payable to terminate the deposits
from which such funds were obtained. The Borrower shall also pay any
customary administrative fees charged by such Lender in connection with
the foregoing.



     For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 3.05, each Lender shall be deemed to have
funded each Eurodollar Rate Loan made by it at the Eurodollar Base Rate used in
determining the Eurodollar Rate for such Loan by a matching deposit or other
borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such Eurodollar Rate Loan was in fact
so funded.


     3.06     Matters
Applicable to all Requests for Compensation.


     (a)     A certificate of the Administrative Agent or any Lender claiming
compensation under this Article III and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, the Administrative
Agent or such Lender may use any reasonable averaging and attribution methods.


     (b)     Upon any Lender’s making a claim for compensation under
Section 3.01 or 3.04, the Borrower may
replace such Lender in accordance with Section 11.16.


     3.07     Survival.


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


ARTICLE IV



GUARANTY



     4.01     The Guaranty.


     Each of the Guarantors hereby jointly and severally guarantees to each
Lender, each Affiliate of a Lender that enters into a Swap Contract, and the
Administrative Agent as hereinafter provided, as primary


43






 


obligor and not as
surety, the prompt payment of the Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) strictly in accordance with the terms
thereof. The Guarantors hereby further agree that if any of the Obligations
are not paid in full when due (whether at stated maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise), the Guarantors will, jointly and severally, promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Obligations, the same will be
promptly paid in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration, as a mandatory cash collateralization or
otherwise) in accordance with the terms of such extension or renewal.


     Notwithstanding any provision to the contrary contained herein or in any
other of the Loan Documents or Swap Contracts, the obligations of each
Guarantor under this Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest
amount that would not render such obligations subject to avoidance under the
Debtor Relief Laws or any comparable provisions of any applicable state law.


     4.02     Obligations Unconditional.


     The obligations of the Guarantors under Section 4.01
are joint and several, absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the Loan
Documents or Swap Contracts, or any other agreement or instrument referred to
therein, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section
4.02 that the obligations of the Guarantors hereunder shall be
absolute and unconditional under any and all circumstances. Each Guarantor
agrees that such Guarantor shall have no right of subrogation, indemnity,
reimbursement or contribution against the Borrower or any other Guarantor for
amounts paid under this Article IV until such time as the
Obligations have been paid in full and the Revolving Commitment have expired or
terminated. Without limiting the generality of the foregoing, it is agreed
that, to the fullest extent permitted by law, the occurrence of any one or more
of the following shall not alter or impair the liability of any Guarantor
hereunder, which shall remain absolute and unconditional as described above:



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




		
	 	     (b)     any of the acts mentioned in any of the provisions of any of the
Loan Documents, any Swap Contract between any Loan Party and any Lender,
or any Affiliate of a Lender, or any other agreement or instrument
referred to in the Loan Documents or such Swap Contracts shall be done or
omitted;




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




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



44






 







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



     With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever, and any requirement that the Administrative Agent or any Lender
exhaust any right, power or remedy or proceed against any Person under any of
the Loan Documents, any Swap Contract between any Loan Party and any Lender, or
any Affiliate of a Lender, or any other agreement or instrument referred to in
the Loan Documents or such Swap Contracts, or against any other Person under
any other guarantee of, or security for, any of the Obligations.


     4.03     Reinstatement.


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


     4.04     Certain Additional Waivers.


     Each Guarantor agrees that such Guarantor shall have no right of recourse
to security for the Obligations, except through the exercise of rights of
subrogation pursuant to Section 4.02 and through the
exercise of rights of contribution pursuant to Section 4.06.


     4.05     Remedies.


     The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, the Obligations may be declared to be forthwith due
and payable as provided in Section 9.02 (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 9.02) for purposes of Section
4.01 notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or the Obligations being deemed to have become
automatically due and payable), the Obligations (whether or not due and payable
by any other Person) shall forthwith become due and payable by the Guarantors
for purposes of Section 4.01. The Guarantors acknowledge
and agree that their obligations hereunder are secured in accordance with the
terms of the Collateral Documents and that the Lenders may exercise their
remedies thereunder in accordance with the terms thereof.


     4.06     Rights of Contribution.


     The Guarantors hereby agree as among themselves that, if any Guarantor
shall make an Excess Payment (as defined below), such Guarantor shall have a
right of contribution from each other Guarantor in an amount equal to such
other Guarantor’s Contribution Share (as defined below) of such Excess Payment.
The payment obligations of any Guarantor under this Section
4.06 shall be subordinate and subject in right of payment to the
Obligations until such time as the Obligations have been paid in full and the
Revolving Commitments have expired or terminated, and none of the Guarantors
shall exercise any right or remedy


45






 


under this Section 4.06
against any other Guarantor until such Obligations have been paid in full and
the Revolving Commitments have expired or terminated. For purposes of this
Section 4.06, (a) “Excess Payment” shall mean the amount
paid by any Guarantor in excess of its Ratable Share of any Guaranteed
Obligations; (b) “Ratable Share” shall mean, for any Guarantor in respect of
any payment of Obligations, the ratio (expressed as a percentage) as of the
date of such payment of Guaranteed Obligations of (i) the amount by which the
aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of such Guarantor hereunder) to (ii) the amount by
which the aggregate present fair saleable value of all assets and other
properties of all of the Loan Parties exceeds the amount of all of the debts
and liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Loan Parties hereunder) of the Loan Parties;
provided, however, that, for purposes of
calculating the Ratable Shares of the Guarantors in respect of any payment of
Obligations, any Guarantor that became a Guarantor subsequent to the date of
any such payment shall be deemed to have been a Guarantor on the date of such
payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection
with such payment; (c) “Contribution Share” shall mean, for any Guarantor in
respect of any Excess Payment made by any other Guarantor, the ratio (expressed
as a percentage) as of the date of such Excess Payment of (i) the amount by
which the aggregate present fair saleable value of all of its assets and
properties exceeds the amount of all debts and liabilities of such Guarantor
(including contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (ii) the amount
by which the aggregate present fair saleable value of all assets and other
properties of the Loan Parties other than the maker of such Excess Payment
exceeds the amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Loan Parties) of the Loan Parties other than the maker of
such Excess Payment; provided, however,
that, for purposes of calculating the Contribution Shares of the Guarantors in
respect of any Excess Payment, any Guarantor that became a Guarantor subsequent
to the date of any such Excess Payment shall be deemed to have been a Guarantor
on the date of such Excess Payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized
for such Guarantor in connection with such Excess Payment; and (d) “Guaranteed
Obligations” shall mean the Obligations guaranteed by the Guarantors pursuant
to this Article IV. This Section 4.06
shall not be deemed to affect any right of subrogation, indemnity,
reimbursement or contribution that any Guarantor may have under Law against the
Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding
the foregoing, all rights of contribution against any Guarantor shall terminate
from and after such time, if ever, that such Guarantor shall be relieved of its
obligations in accordance with Section 10.11.


     4.07     Guarantee of Payment; Continuing Guarantee.


     The guarantee in this Article IV is a guaranty of
payment and not of collection, is a continuing guarantee, and shall apply to
all Obligations whenever arising.


ARTICLE V



CONDITIONS PRECEDENT TO CREDIT EXTENSIONS



     5.01     Conditions of Initial Credit Extension.


     The obligation of each Lender to make its initial Credit Extension
hereunder is subject to satisfaction of the following conditions precedent:


46






 



		
	 	     (a)     Loan Documents. Receipt by the
Administrative Agent of executed counterparts of this Agreement and the
other Loan Documents, each properly executed by a Responsible Officer of
the signing Loan Party and, in the case of this Agreement, by each
Lender.




		
	 	     (b)     Organization Documents, Resolutions, Etc.
Receipt by the Administrative Agent’s of the following, each of which
shall be originals or facsimiles (followed promptly by originals), dated
as of a recent date before the Closing Date and in form and substance
satisfactory to the Administrative Agent and its legal counsel:




		
	 	     (i)     copies of the Organization Documents of each Loan Party
certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state
or other jurisdiction of its incorporation or organization,
where applicable, and certified by a secretary or assistant
secretary of such Loan Party to be true and correct as of the
Closing Date;




		
	 	     (ii)     a certificate from the secretary or assistant secretary
of each Loan Party attesting to the resolutions of such Loan
Party’s board of directors and the incumbency of Responsible
Officers of each Loan Party evidencing the identity, authority and
capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other
Loan Documents to which such Loan Party is a party; and




		
	 	     (iii)     such documents and certifications as the Administrative
Agent may reasonably require to evidence that each Loan Party is
duly organized or formed, and is validly existing and in good
standing in its state of organization or formation and qualified to
engage in business in the state of its principal place of business,
except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.




		
	 	     (c)     Opinion of Counsel. Receipt by the
Administrative Agent’s of favorable opinions of counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, dated as
of the Closing Date, and in form and substance satisfactory to the
Administrative Agent.




		
	 	     (d)     Perfection and Priority of Liens. Receipt by
the Administrative Agent of the following:




		
	 	     (i)     searches of Uniform Commercial Code filings in the
jurisdiction of formation of each Loan Party, the jurisdiction of
the chief executive office of each Loan Party and, if requested by
the Administrative Agent, each jurisdiction where any Collateral is
located or where a filing would need to be made in order to perfect
the Administrative Agent’s security interest in the Collateral;




		
	 	     (ii)     searches of ownership of, and Liens on, intellectual
property of each Loan Party in the appropriate governmental
offices;




		
	 	     (iii)     duly executed notices of grant of security interest in
the form required by the Security Agreement as are reasonably
requested by the Administrative Agent to perfect the Administrative
Agent’s security interest in the intellectual property of the Loan
Parties;



47






 







		
	 	     (iv)     with respect to each real property owned by any Loan
Party as of the Closing Date, (A) Mortgage Instruments, (B) title
searches demonstrating that such real property is free and clear of
all defects and encumbrances except (x) Permitted Liens, (y) Liens
in favor of the agent under the Existing Credit Facility and (z)
Liens in favor of the trustee under the indenture for the
Borrower’s 12% Second Priority Secured Notes due 2006 and (C) a
legal opinion of counsel for the Loan Parties for each state in
which such real property is located.




		
	 	     (e)     Financial Statements. The Administrative Agent shall have received:




		
	 	     (i)     the Audited Financial Statements;
	 
	 	     (ii)     interim quarterly financial statements of the Borrower
and its Subsidiaries for the fiscal quarter ending March 31, 2003;




		
	 	     (iii)     the projections of the financial condition, results of
operations and cash flows for the Borrower and its Subsidiaries for
fiscal years ending December 31, 2003, December 31, 2004 and
December 31, 2005 (collectively, the “Closing Date
Projections”); and




		
	 	     (iv)     such other information as the Administrative Agent may
reasonably request.




		
	 	     (f)     No Material Adverse Change. There shall not
have occurred a material adverse change since December 31, 2002 in the
business, assets, liabilities (actual or contingent), operations,
financial condition or prospects of the Borrower, together with its
Subsidiaries taken as a whole.




		
	 	     (g)     Closing Certificate. Receipt by the
Administrative Agent of a certificate signed by a Responsible Officer of
the Borrower certifying that the conditions specified in Section
5.01(f) and Sections 5.02(a),
(b) and (c) have been satisfied.




		
	 	     (h)     Opening Borrowing Base Report. Receipt by
the Administrative Agent of a Borrowing Base Certificate as of May 31,
2003, substantially in the form of Exhibit E and
certified by a Responsible Officer of the Borrower to be true and correct
as of the Closing Date.




		
	 	     (i)     Availability. As of the Closing Date, after
giving effect to the initial Loans made and Letters of Credit issued on
the Closing Date, each of the Aggregate Revolving Commitments and the
Borrowing Base shall exceed the Total Revolving Outstandings by at least
$5,000,000.




		
	 	     (j)     Evidence of Insurance. Receipt by the
Administrative Agent of copies of insurance policies or certificates of
insurance of the Loan Parties evidencing liability and casualty insurance
meeting the requirements set forth in Section 7.07,
including, but not limited to, naming the Administrative Agent as
additional insured (in the case of liability insurance) or loss payee (in
the case of hazard insurance) on behalf of the Lenders.




		
	 	     (k)     Senior Notes. The Borrower shall have
received net cash proceeds (meaning cash received from the issuance of
the Senior Notes less underwriting fees and other expenses directly
applicable to such issuance) of at least $115 million from the issuance
by the Borrower of the Senior Notes on terms that are satisfactory to the
Administrative Agent. The Administrative Agent shall have received a
copy, certified by a Responsible Officer of the Borrower as true and



48






 







		
	 	complete, of the Senior Note Documents as originally executed and
delivered, together with all exhibits and schedules thereto.




		
	 	     (l)     Repayment of Existing Indebtedness. Receipt
by the Administrative Agent of evidence that, after giving effect to the
issuance of the Senior Notes and the application on the Closing Date of
the proceeds thereof to the repayment of existing Indebtedness of the
Borrower and its Subsidiaries, the Borrower and its Subsidiaries shall
have (i) no Indebtedness except for Indebtedness permitted under
Section 8.03 and (ii) repurchased all of the
Borrower’s 12%
Second Priority Secured Notes due 2006 that were validly tendered
and not validly withdrawn as of the Consent Date (such term as defined in
the Borrower’s Offer to Purchase and Consent Solicitation, dated June 20,
2003), as set forth on Schedule 1 to the Depositary’s
Certificate, dated July 1, 2003, by U.S. Bank National Association.




		
	 	     (m)     Termination of Existing Credit Facility.
Receipt by the Administrative Agent of (i) a payoff letter from the agent
under the Existing Credit Facility in form and substance reasonably
satisfactory to the Administrative Agent and (ii) evidence that (A) the
commitments under the Existing Credit Facility have been terminated, (B)
all loans and other obligations (other than letters of credit)
outstanding under the Existing Credit Facility have been repaid in full,
(C) all letters of credit outstanding under the Existing Credit Facility
will be replaced with Letters of Credit issued on the Closing Date or
will be cash collateralized on or prior to the Closing Date and (D) all
Liens securing the Existing Credit Facility have been released.




		
	 	     (n)     Release of Liens Securing Second Priority
Notes. Receipt by the Administrative Agent of evidence that
all Liens securing the Borrower’s 12% Second Priority Secured Notes due
2006 have been released.




		
	 	     (o)     Fees. Receipt by the Administrative Agent
and the Lenders of any fees required to be paid on or before the Closing
Date shall have been paid.




		
	 	     (p)     Attorney Costs. The Borrower shall have paid
all Attorney Costs of the Administrative Agent and the Documentation
Agent to the extent invoiced prior to the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute the
Administrative Agent’s and the Documentation Agent’s reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a
final settling of accounts between the Borrower and the Administrative
Agent and the Documentation Agent, as applicable).




		
	 	     (q)     Other. Receipt by the Administrative Agent
and the Lenders of such other documents, instruments, agreements and
information as reasonably requested by the Administrative Agent or any
Lender, including, but not limited to, information regarding litigation,
tax, accounting, labor, insurance, pension liabilities (actual or
contingent), real estate leases, environmental matters, material
contracts, debt agreements, property ownership, contingent liabilities,
employment agreements, non-compete agreements and management of the
Borrower and its respective Subsidiaries.



     5.02     Conditions to all Credit Extensions.


     The obligation of each Lender to honor any Request for Credit Extension is
subject to the following conditions precedent:


49






 



		
	 	     (a)     The representations and warranties of each Loan Party contained
in Article VI and in the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they
shall be true and correct as of such earlier date, and except that for
purposes of this Section 5.02, the representations and
warranties contained in subsections (a) and (b) of Section
6.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of
Section 7.01.
	 
	 	     (b)     No Default shall exist, or would result from such proposed
Credit Extension.




		
	 	     (c)     There shall not have been commenced against the Borrower or any
Subsidiary an involuntary case under any applicable Debtor Relief Law,
now or hereafter in effect, or any case, proceeding or other action for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its affairs,
and such involuntary case or other case, proceeding or other action shall
remain undismissed.




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



     Each Request for Credit Extension submitted by the Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 5.02(a), (b) and
(c) have been satisfied on and as of the date of the
applicable Credit Extension.


ARTICLE VI



REPRESENTATIONS AND WARRANTIES



     The Loan Parties represent and warrant to the Administrative Agent and
the Lenders that:


     6.01     Existence, Qualification and Power.


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


     6.02     Authorization; No Contravention.


     The execution, delivery and performance by each Loan Party of each Loan
Document to which such Person is party, have been duly authorized by all
necessary corporate or other organizational action, and do not (a) contravene
the terms of any of such Person’s Organization Documents; (b) conflict with or
result in any breach or contravention of, or the creation of any Lien under,
(i) any Contractual Obligation to which such Person is a party or (ii) any
order, injunction, writ or decree of any Governmental Authority


50






 


or any arbitral
award to which such Person or its Property is subject; or (c) violate any Law
(including, without limitation, Regulation U or Regulation X issued by the
FRB).


     6.03     Governmental Authorization; Other Consents.


     No material approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority or any other
Person is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, any Loan Party of this Agreement or any
other Loan Document, other than (i) those that have already been obtained
and are in full force and effect and (ii) filings to perfect the Liens created
by the Collateral Documents.


     6.04     Binding Effect.


     This Agreement and each other Loan Document has been duly executed and
delivered by each Loan Party that is party thereto. This Agreement and each
other Loan Document constitutes a legal, valid and binding obligation of each
Loan Party that is party thereto, enforceable against each such Loan Party in
accordance with its terms, except as enforceability may be limited by
applicable Debtor Relief Laws or by equitable principals relating to
enforceability.


     6.05     Financial Statements; No Material Adverse Effect.


     (a)     The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (ii) fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as of the
date thereof and their results of operations for the period covered thereby in
accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein.


     (b)     The unaudited consolidated financial statements of the Borrower and
its Subsidiaries dated March 31, 2003 and the related consolidated statements
of income or operations, shareholders’ equity and cash flows for the fiscal
quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (ii) fairly present in all material respects the
financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby in accordance
with GAAP consistently applied throughout the period covered thereby, subject,
in the case of clauses (i) and (ii), to the absence of footnotes and to normal
year-end audit adjustments.


     (c)     The Closing Date Projections are based upon reasonable assumptions
made known to the Lenders and upon information not known to be incorrect or
misleading in any material respect.


     (d)     From December 31, 2002 to and including the Closing Date, there has
been no Disposition by the Borrower or any Subsidiary, or any Involuntary
Disposition, of any material part of the business or Property of the Borrower
and its Subsidiaries, taken as a whole, and no purchase or other acquisition by
any of them of any business or Property (including any Capital Stock of any
other Person) material in relation to the consolidated financial condition of
the Borrower and its Subsidiaries, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes thereto and has
not otherwise been disclosed in writing to the Lenders on or prior to the
Closing Date.


     (e)     The financial statements delivered pursuant to Section
7.01(a) and (b) have been prepared in accordance with GAAP (except as
may otherwise be permitted under Section 7.01(a) and
(b)) and present fairly (in the case of the financial
statements delivered pursuant to Section 7.01(a), on the
basis disclosed in


51






 


the footnotes to such financial statements) in all material
respects the consolidated and, in the case of consolidating annual financial
statements delivered pursuant to Section 7.01(a),
consolidating, financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries as of such date and for such periods.


     (f)     Since December 31, 2002 there has been no event or circumstance that
has had or could reasonably be expected to have a Material Adverse Effect.


     6.06     Litigation.


     There are no actions, suits, proceedings, claims or disputes pending or,
to the knowledge of the Loan Parties after due and diligent investigation,
threatened or contemplated, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Borrower or any of its Subsidiaries
or against any of their properties or revenues that (a) purport to affect or
pertain to this Agreement or any other Loan Document, or (b) is reasonably
likely to be determined adversely to the Borrower or any of its Subsidiaries
and, if determined adversely, could reasonably be expected to have a Material
Adverse Effect.


     6.07     No Default.


     (a)     Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could reasonably be expected to have
a Material Adverse Effect.


     (b)     No Default has occurred and is continuing.


     6.08     Ownership of Property; Liens.


     Each of the Borrower and its Subsidiaries has good record and marketable
title in fee simple to, or valid leasehold interests in, all real property
necessary or used in the ordinary conduct of its business, except for such
defects in title as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Property of the Borrower and
its Subsidiaries is subject to no Liens, other than Permitted Liens.


     6.09     Environmental Compliance.


     Except as would not reasonably be expected to have a Material Adverse Effect:



		
	 	     (a)     Each of the Facilities and all operations at the Facilities are
in compliance with all applicable Environmental Laws, and there is no
violation of any Environmental Law with respect to the Facilities or the
Businesses, and there are no conditions relating to the Facilities or the
Businesses that would reasonably be expected to give rise to liability
under any Environmental Laws.




		
	 	     (b)     None of the Facilities contains, or has previously contained,
any Hazardous Materials at, on or under the Facilities in amounts or
concentrations that constitute or constituted a violation of, or would
reasonably be expected to give rise to liability under, Environmental
Laws.




		
	 	     (c)     Neither the Borrower nor any Subsidiary has received any written
or verbal notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance or
Environmental Liability regarding environmental matters or compliance
with Environmental Laws with regard to any of the Facilities or the
Businesses, nor does any Responsible



52






 







		
	 	Officer of any Loan Party have
knowledge that any such notice will be received or is being threatened.




		
	 	     (d)     Hazardous Materials have not been transported or disposed of
from the Facilities, or generated, treated, stored or disposed of at, on
or under any of the Facilities or any other location, in each case by or
on behalf the Borrower or any Subsidiary in violation of, or in a manner
that would be reasonably likely to give rise to liability under, any
applicable Environmental Law.
	 
	 	     (e)     No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Responsible Officers of the Loan
Parties, threatened, under any Environmental Law to which the Borrower or
any Subsidiary is or will be named as a party, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders of Governmental Authorities, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to the
Borrower, any Subsidiary, the Facilities or the Businesses.




		
	 	     (f)     There has been no release or, threat of release of Hazardous
Materials at or from the Facilities, or arising from or related to the
operations (including, without limitation, disposal) of the Borrower or
any Subsidiary in connection with the Facilities or otherwise in
connection with the Businesses, in violation of or in amounts or in a
manner that would reasonably be expected to give rise to liability under
Environmental Laws.



     6.10     Insurance.


     The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the
Borrower, 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 the Borrower or the applicable
Subsidiary operates. The insurance coverage of the Loan Parties as in effect
on the Closing Date is outlined as to carrier, policy number, expiration date,
type, amount and deductibles on Schedule 6.10.


     6.11     Taxes.


     The Borrower and its Subsidiaries have filed all federal, state and other
material tax returns and reports required to be filed, and have paid all
federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which
adequate reserves have been provided in accordance with GAAP. There is no
proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect.


     6.12     ERISA Compliance.


     (a)     Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state Laws. Each Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable determination letter from the
IRS or an application for such a letter is currently being processed by the IRS
with respect thereto and, to the best knowledge of the Loan Parties, nothing
has occurred which would prevent, or cause the loss of, such qualification.
Each Loan Party and each ERISA Affiliate have made all required contributions
to each Plan subject to Section 412 of the Internal Revenue Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Internal Revenue Code has been made with respect
to any Plan.


53






 


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


     (c)     (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) no Loan
Party nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) no Loan Party nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.


     6.13     Subsidiaries.


     Set forth on Schedule 6.13 is a complete and accurate
list as of the Closing Date of each Subsidiary, together with (i) number of
shares of each class of Capital Stock outstanding and (ii) number and
percentage of outstanding shares of each class owned (directly or indirectly)
by the Borrower or any Subsidiary. The outstanding Capital Stock of each
Subsidiary is validly issued, fully paid and non-assessable and, except as set
forth on Schedule 6.13, is not subject to any outstanding
options, warrants, rights of conversion or purchase or any other similar rights
with respect thereto.


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


     (a)     The Borrower is not engaged and will not engage, principally or as one
of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the FRB), or extending
credit for the purpose of purchasing or carrying margin stock. Following the
application of the proceeds of each Borrowing or drawing under each Letter of
Credit, not more than 25% of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a consolidated basis) subject
to the provisions of Section 8.01 or Section
8.05 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender
relating to Indebtedness and within the scope of Section
9.01(e) will be margin stock.


     (b)     None of the Borrower or any Subsidiary (i) is a “holding company,” or
a “subsidiary company” of a “holding company,” or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an “investment company” under the Investment
Company Act of 1940 or is controlled by any Person that is or is required to be
registered as an “investment company” under the Investment Company Act of 1940.


     6.15     Disclosure.


     No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished)
contains any material misstatement of fact



54










 




	 	 	or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information
(including the Closing Date Projections), the Loan Parties represent only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.




		
	 	     6.16     Compliance with Laws.




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




		
	 	     6.17     Intellectual Property; Licenses, Etc.




		
	 	     The Borrower and its Subsidiaries own, or possess the legal right to use,
all of the trademarks, service marks, trade names, copyrights, patents, patent
rights, franchises, licenses and other intellectual property rights
(collectively, “IP Rights”) that are reasonably necessary for the operation of
their respective businesses. Set forth on Schedule 6.17 is a list of all IP
Rights registered or pending registration with the United States Copyright
Office or the United States Patent and Trademark Office and owned by each Loan
Party or that any Loan Party has the right to use as of the Closing Date. No
claim that is reasonably likely to be determined adversely to the Borrower or
any of its Subsidiaries and, if determined adversely, could reasonably be
expected to have a Material Adverse Effect has been asserted and is pending by
any Person challenging or questioning the use of any IP Rights or the validity
or effectiveness of any IP Rights, nor does any Loan Party know of any such
claim. Except as could not reasonably be expected to have a Material Adverse
Effect, to the knowledge of the Responsible Officers of the Loan Parties, the
use of any IP Rights by the Borrower or any Subsidiary or the granting of a
right or a license in respect of any IP Rights from the Borrower or any
Subsidiary does not infringe on the rights of any Person. As of the Closing
Date, none of the IP Rights owned by any of the Loan Parties is subject to any
licensing agreement or similar arrangement except as set forth on
Schedule 6.17.





		
	 	     6.18     [Reserved].




		
	 	     6.19      Effectiveness of Security Interests in the Collateral.




		
	 	     The Collateral Documents, when executed and delivered by all parties
thereto, create valid security interests in, and Liens on, the Collateral
purported to be covered thereby.




		
	 	     6.20      Business Locations.




		
	 	     (a)     Set
forth on Schedule 6.20(a) is a list of all real property located
in the United States that is owned or leased by the Loan Parties as of the
Closing Date.




		
	 	     (b)     Set
forth on Schedule 6.20(b) is a list of all locations where any
tangible personal property of any Loan Party is located as of the Closing Date
(other than those locations set forth on
Schedule 6.20(a)).




		
	 	     (c)     Set
forth on Schedule 6.20(c) is the chief executive office location
of each Loan Party as of the Closing Date.



55






 







		
	 	     (d)     The exact legal name and state of formation of each Loan Party is as
set forth on the signature pages to this Agreement (or any Joinder Agreement,
as applicable, or as indicated pursuant to Section 8.13).




		
	 	     (e)     Except
as set forth on Schedule 6.20(e), no Loan Party has during the
five years preceding the Closing Date (i) changed its legal name, (ii) changed
its state of formation, or (iii) been party to a merger, consolidation or other
similar change in structure.




		
	 	     6.21     Labor Matters.
	 
	 	     There are no collective bargaining agreements or Multiemployer Plans
covering the employees of the Borrower or any Subsidiary as of the Closing Date
and neither the Borrower nor any Subsidiary has suffered any strikes, walkouts,
work stoppages or other material labor difficulty within the last five years.
	 
	 	     6.22     Tax Shelter Regulations.
	 
	 	     As of the Closing Date, the Borrower does not intend to treat the Loans
and/or Letters of Credit and related transactions as being a “reportable
transaction” (within the meaning of Treasury Regulation Section 1.6011-4). In
the event the Borrower determines to take any action inconsistent with such
intention, it will promptly notify the Administrative Agent thereof. If the
Borrower so notifies the Administrative Agent, the Borrower acknowledges that
one or more of the Lenders may treat its Loans and/or its interest in Swing
Line Loans and/or Letters of Credit as part of a transaction that is subject to
Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as
applicable, will maintain the lists and other records required by such Treasury
Regulation.



ARTICLE VII



AFFIRMATIVE COVENANTS




		
	 	     So long as any Lender shall have any Revolving Commitment hereunder, any
Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding (other than any Letter of Credit that
is Cash Collateralized pursuant to Section 2.03(g)), the Loan Parties shall and
shall cause each Subsidiary to:
	 
	 	     7.01     Financial Statements.
	 
	 	     Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:




		
	 	        (a)     as soon as available, but in any event within ninety days after
the end of each fiscal year of the Borrower, a consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as at
the end of such fiscal year, and the related consolidated and
consolidating statements of income or operations, shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and
accompanied by a report and opinion of PricewaterhouseCoopers or other
independent certified public accountant of nationally recognized standing
reasonably acceptable to the Administrative Agent, which report and
opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the
scope of such audit; and



56






 







		
	 	     (b)     as soon as available, but in any event within forty-five days
after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, a consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal quarter,
and the related consolidated and consolidating statements of income or
operations and cash flows for such fiscal quarter and for the portion of
the Borrower’s fiscal year then ended, setting forth in each case in
comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal
year, all in reasonable detail and certified by a Responsible Officer of
the Borrower as fairly presenting in all material respects the financial
condition, results of operations, shareholders’ equity and cash flows of
the Borrower and its Subsidiaries in accordance with GAAP, subject only
to normal year-end audit adjustments and the absence of footnotes.




		
	 	     7.02      Certificates; Other Information.
	 
	 	     Deliver to the Administrative Agent and each Lender, in form and detail
satisfactory to the Administrative Agent and the Required Lenders:




		
	 	     (a)     concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower;
	 
	 	     (b)     within 20 days after the end of each calendar month, a
certificate as of the end of the immediately preceding month,
substantially in the form of Exhibit E and certified by a Responsible
Officer of the Borrower to be true and correct as of the date thereof (a
“Borrowing Base Certificate”);
	 
	 	     (c)     concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a summary of the accounts
receivable aging and accounts payable aging of the Borrower and its
Subsidiaries in a form reasonably acceptable to the Administrative Agent.
	 
	 	     (d)     within thirty (30) days of the start of each fiscal year of the
Borrower, the annual business plan and budget of the Borrower and its
Subsidiaries containing, among other things, projected financial
statements for each quarter of such fiscal year;
	 
	 	     (e)     promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit
committee of the board of directors) of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or
any Subsidiary, or any audit of any of them;
	 
	 	     (f)     promptly after the same are available, (i) copies of Form 10-Q
quarterly reports, Form 10-K annual reports, and Form 8-K current
reports, (ii) notice of (and, upon the request of the Administrative
Agent, copies of) any other filings made by Borrower or any Subsidiary
with the SEC, and (iii) notice of (and, upon the request of the
Administrative Agent, copies of) any other information that is provided
by Borrower to its shareholders generally;
	 
	 	     (g)     upon the request of the Administrative Agent or any Lender,
copies of all reports and written information to and from the United
States Environmental Protection Agency, or any state or local agency
responsible for environmental matters, the United States Occupational
Health and Safety Administration, or any state or local agency
responsible for health and safety matters, or any successor agencies or
Governmental Authorities concerning allegations of Environmental
Liability;



57






 







		
	 	     (h)     promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or
compliance with the terms of the Loan Documents, as the Administrative
Agent or any Lender may from time to time reasonably request;
	 
	 	     (i)     concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a certificate of a Responsible
Officer of the Borrower (i) listing (A) all applications, if any, for
Copyrights, Patents or Trademarks (each such term as defined in the
Security Agreement) made since the date of the prior certificate (or, in
the case of the first such certificate, the Closing Date), (B) all
issuances of registrations or letters on existing applications for
Copyrights, Patents and Trademarks (each such term as defined in the
Security Agreement) received since the date of the prior certificate (or,
in the case of the first such certificate, the Closing Date), and (C) all
material Trademark Licenses, Copyright Licenses and Patent Licenses (each
such term as defined in the Security Agreement) entered into since the
date of the prior certificate (or, in the case of the first such
certificate, the Closing Date), and (ii) attaching the insurance binder
or other evidence of insurance for any insurance coverage of the Borrower
or any Subsidiary that was renewed, replaced or modified during the
period covered by such financial statements; and
	 
	 	     (j)     promptly after the Borrower has notified the Administrative
Agent of any intention by the Borrower to treat the Loans and/or Letters
of Credit and related transactions as being a “reportable transaction”
(within the meaning of Treasury Regulation Section 1.6011-4), a duly
completed copy of IRS Form 8886 or any successor form.




		
	 	     Documents
required to be delivered pursuant to Section 7.01(a) or
(b) or Section 7.02(f) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts such
documents, or provides a link thereto on the Borrower’s website on the Internet
at the website address listed on Schedule 11.02; or (ii) on which such
documents are posted on the Borrower’s behalf on IntraLinks/IntraAgency or
another relevant website, if any, to which each Lender and the Administrative
Agent have access (whether a commercial, third-party website or whether
sponsored by the Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any
Lender that requests the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent
or such Lender and (ii) the Borrower shall notify (which may be by facsimile or
electronic mail) the Administrative Agent and each Lender of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents. Notwithstanding
anything contained herein, in every instance the Borrower shall be required to
provide paper copies of the Compliance Certificates and Borrowing Base
Certificates required by Section 7.02 to the Administrative Agent and each of
the Lenders. Except for such Compliance Certificates, the Administrative Agent
shall have no obligation to request the delivery or to maintain copies of the
documents referred to above, and in any event shall have no responsibility to
monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining
its copies of such documents.




		
	 	     7.03     Notices.
	 
	 	     (a)     Promptly (and in any event within two Business Days) after a
Responsible Officer of a Loan Party obtains knowledge thereof, notify the
Administrative Agent and each Lender of the occurrence of any Default.
	 
	 	     (b)     Promptly notify the Administrative Agent and each Lender of any
material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary.



58






 







		
	 	     Each notice
pursuant to this Section 7.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. Each notice pursuant to
Section 7.03(a) shall describe with particularity any and all provisions of this
Agreement and any other Loan Document that have been breached.
	 
	 	     7.04      Payment of Obligations.
	 
	 	     Pay and discharge as the same shall become due and payable prior to any
penalty or interest accruing thereon, all tax liabilities, assessments and
governmental charges or levies upon it or its properties or assets, unless the
same are being contested in good faith by appropriate proceedings diligently
conducted and adequate reserves in accordance with GAAP are being maintained by
the Borrower or such Subsidiary.
	 
	 	     7.05     Preservation of Existence, Etc.
	 
	 	     (a)Preserve, renew and maintain in full force and effect its legal
existence under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 8.04 or 8.05; (b) preserve, renew and maintain
in full force and effect its good standing under the Laws of the jurisdiction
of its organization except (i) in a transaction permitted by
Section 8.04 or 8.05 and (ii) as could not reasonably be expected to have a Material Adverse
Effect; (c) take all reasonable action to maintain all material rights,
privileges, permits, licenses and franchises necessary or desirable in the
normal conduct of its business; and (d) preserve or renew all of its material
registered patents, trademarks, trade names and service marks used in and
necessary to its Business.
	 
	 	     7.06      Maintenance of Properties.
	 
	 	     (a)Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and Involuntary Dispositions excepted; (b)
make all necessary repairs thereto and renewals and replacements thereof as
appropriate in the exercise of its commercially reasonable judgment; and (c)
use the standard of care typical in the industry in the operation and
maintenance of its facilities.
	 
	 	     7.07     Maintenance
of Insurance.
	 
	 	     Maintain in full force and effect insurance (including worker’s
compensation insurance, liability insurance, casualty insurance and business
interruption insurance) with financially sound and reputable insurance
companies not Affiliates of the Borrower, 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
the Borrower or the applicable Subsidiary operates, provided that if any
insurance company with which the Borrower maintains any such insurance fails to
meet the foregoing criteria subsequent to the Borrower obtaining such
insurance, the Borrower will within thirty (30) days after obtaining knowledge
thereof obtain such insurance from one or more insurance companies that meet
the foregoing criteria. The Administrative Agent shall be named as loss payee
or mortgagee, as its interest may appear, and/or additional insured with
respect to any such insurance providing coverage in respect of any Collateral,
and each provider of any such insurance shall agree, by endorsement upon the
policy or policies issued by it or by independent instruments furnished to the
Administrative Agent, that it will give the Administrative Agent thirty (30)
days prior written notice before any such policy or policies shall be altered
in a manner materially adverse to the Administrative Agent or canceled.



59






 







		
	 	     7.08      Compliance with Laws.
	 
	 	     Comply in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its Property,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate
proceedings diligently conducted; or (b) the failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.
	 
	 	     7.09     Books and Records.
	 
	 	     (a) Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of
all financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain such books of
record and account in material conformity with all applicable requirements of
any Governmental Authority having regulatory jurisdiction over the Borrower or
such Subsidiary, as the case may be.
	 
	 	     7.10     Inspection Rights; Field Audits.
	 
	 	     (a)     Permit representatives and independent contractors of the
Administrative Agent and any Lender to visit and inspect any of its properties,
to examine its corporate, financial and operating records, and make copies
thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all
at the expense of the Borrower and at such reasonable times during normal
business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrower; provided, however, that (i) so long as no Event
of Default has occurred and is continuing, the Borrower shall be obligated to
pay only the expenses incurred by the Administrative Agent in connection with
only two such visits and inspections made by the Administrative Agent in any
calendar year and (ii) when an Event of Default exists the Administrative Agent
or any Lender (or any of their respective representatives or independent
contractors) may do any of the foregoing at the expense of the Borrower at any
time during normal business hours and without advance notice. Notwithstanding
the foregoing, neither the Borrower nor any Subsidiary shall be required to
disclose (a) any materials subject to a confidentiality obligation binding upon
the Borrower or such Subsidiary or (b) any communications protected by
attorney-client privilege the disclosure or inspection of which would waive
such privilege.
	 
	 	     (b)     Permit the Administrative Agent, and its representatives, to conduct
up to two field exams of the Property of the Borrower and its Subsidiaries each
year at the expense of the Loan Parties. The Administrative Agent agrees, upon
the request of the Required Lenders, to conduct any such field exam.
Notwithstanding the foregoing, neither the Borrower nor any Subsidiary shall be
required to disclose (a) any materials subject to a confidentiality obligation
binding upon the Borrower or such Subsidiary or (b) any communications
protected by attorney-client privilege the disclosure or inspection of which
would waive such privilege.
	 
	 	     7.11     Use of Proceeds.
	 
	 	     Use the proceeds of the Credit Extensions to finance working capital,
capital expenditures and other general corporate purposes.



60






 







		
	 	     7.12     Subsidiaries.
	 
	 	     (a)     Within forty-five (45) days after the acquisition or formation of any
Subsidiary, notify the Administrative Agent thereof in writing, together with
(i) jurisdiction of formation, (ii) number of shares of each class of Capital
Stock outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by the Borrower or any Subsidiary and (iv)
number and effect, if exercised, of all outstanding options, warrants, rights
of conversion or purchase and all other similar rights with respect thereto.
	 
	 	     (b)     Within thirty (30) days after any Person becomes a Material Domestic
Subsidiary, cause such Person to (i) become a Guarantor by executing and
delivering to the Administrative Agent a Joinder Agreement or such other
document as the Administrative Agent shall deem appropriate for such purpose,
and (ii) if requested by the Administrative Agent or the Required Lenders,
deliver to the Administrative Agent documents of the types referred to in
Sections 5.01(b) and (d) and favorable opinions of counsel to such Person
(which shall cover, among other things, the legality, validity, binding effect
and enforceability of the documentation referred to in clause (a)), all in
form, content and scope reasonably satisfactory to the Administrative Agent.
	 
	 	     (c)     Notwithstanding anything to the contrary contained herein, if at any
time any Person that is not a Guarantor provides a Guarantee of the Senior
Notes, then the Borrower shall cause such Person to deliver to the
Administrative Agent, concurrent with such Person providing a Guarantee of the
Senior Notes, (i) a Joinder Agreement pursuant to which such Person become a
Guarantor and grants a Liens in its Property pursuant to the Collateral
Documents and (ii) if requested by the Administrative Agent or the Required
Lenders, documents of the types referred to in
Sections 5.01(b) and 5.01(d) and
favorable opinions of counsel to such Person (which shall cover, among other
things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (i)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.
	 
	 	     7.13      ERISA Compliance.
	 
	 	     Do, and cause each of its ERISA Affiliates to do, each of the following:
(a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Internal Revenue Code and other federal or
state law; (b) cause each Plan that is qualified under Section 401(a) of the
Internal Revenue Code to maintain such qualification; and (c) make all required
contributions to any Plan subject to Section
 412 of the Internal Revenue Code.
	 
	 	     7.14     Pledged Assets.
	 
	 	     Each Loan Party will (i) cause all of its owned and leased real and
personal Property other than Excluded Property to be subject at all times to
first priority, perfected and, in the case of real Property, title insured
Liens in favor of the Administrative Agent to secure the Obligations pursuant
to the terms and conditions of the Collateral Documents or, with respect to any
such Property acquired subsequent to the Closing Date, such other additional
security documents as the Administrative Agent shall reasonably request,
subject in any case to Permitted Liens and (ii) deliver such other
documentation as the Administrative Agent or the Required Lenders may
reasonably request in connection with the foregoing, including, without
limitation, appropriate UCC-1 financing statements, real estate title insurance
policies, surveys, environmental reports, certified resolutions and other
organizational and authorizing documents of such Person, favorable opinions of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to
above entered into after the Closing Date and the perfection of the
Administrative Agent’s Liens thereunder) and other items of the types required
to be delivered pursuant to Section 5.01(d), all in form, content and scope
reasonably



61






 







	 	satisfactory to the Administrative
Agent; provided, however, that in no
event shall the Borrower be required to obtain landlord waivers or other
similar instruments relating to leased Property except to the extent required
by Section 7.16. Without limiting the generality of the above, the Loan
Parties will cause (a) 100% of the issued and outstanding Capital Stock of each
Domestic Subsidiary and (b) 65% (or such greater percentage that, due to a
change in an applicable Law after the date hereof, (1) could not reasonably be
expected to cause the undistributed earnings of such Foreign Subsidiary as
determined for United States federal income tax purposes to be treated as a
deemed dividend to such Foreign Subsidiary’s United States parent and (2) could
not reasonably be expected to cause any material adverse tax consequences) of
the issued and outstanding Capital Stock entitled to vote (within the meaning
of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding
Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section
1.956-2(c)(2)) of each Foreign Subsidiary directly owned by the Borrower or any
Domestic Subsidiary to be subject at all times to a first priority, perfected
Lien in favor of the Administrative Agent pursuant to the terms and conditions
of the Collateral Documents or such other security documents as the
Administrative Agent or the Required Lenders shall reasonably request, subject
to Permitted Liens. The Loan Parties agree that, at any time and from time to
time, upon the written request of the Administrative Agent or the Required
Lenders, and at the sole expense of the Borrower, the Borrower will promptly
take all actions required under the Federal Assignment of Claims Act or any
similar state statute as the Administrative Agent or the Required Lenders may
reasonably request.




		
	 	     The parties hereto acknowledge and agree that, with respect to the
Mortgage Instruments delivered to the Administrative Agent by the Loan Parties
pursuant to Section 5.01(d)(v), (i) the Administrative Agent does not intend to
record such Mortgage Instruments on the Closing Date but instead will hold such
Mortgage Instruments in its possession and (ii) the Administrative Agent may,
in its discretion, or shall, at the direction of the Required Lenders, record
such Mortgage Instruments at any time after the Closing Date.
	 
	 	     7.15     Payment Account.
	 
	 	     Cause each Loan Party to promptly (and in any event with five (5) Business
Days) deposit into the Payment Account all cash proceeds of Receivables and all
cash from the sale of Property, the rendition of services or otherwise
(including all cash returned in connection with any cash collateralized
obligations) received by such Loan Party.
	 
	 	     7.16
     Landlord Lien Waivers.
	 
	 	     (a)     Within ninety (90) days of the Closing Date, obtain a landlord lien
waiver, in form and substance reasonably satisfactory to the Administrative
Agent, for the location of the Borrower’s chief executive office (i.e., the
location where the Borrower maintains its books and records necessary to
collect its accounts receivable). The Administrative Agent acknowledges and
agrees that the landlord lien waiver delivered by the landlord of the location
of the Borrower’s chief executive office in connection with the Existing Credit
Agreement is in form and substance satisfactory to the Administrative Agent.
	 
	 	     (b)     Within ninety (90) days of the date any Subsidiary becomes a Guarantor
hereunder, obtain a landlord lien waiver, in form and substance reasonably
satisfactory to the Administrative Agent, for the location of such Guarantor’s
chief executive office (i.e., the location where such Guarantor maintains its
books and records necessary to collect its accounts receivable).
	 
	 	     (c)     Within ninety (90) days of the date any Loan Party changes the
location where it maintains its books and records necessary to collect its
accounts receivable, obtain a landlord lien waiver, in form and substance
reasonably satisfactory to the Administrative Agent, for such new location.



62






 






ARTICLE VIII



NEGATIVE COVENANTS




		
	 	     So long as any Lender shall have any Revolving Commitment hereunder, any
Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any
Letter of Credit shall remain outstanding (other than any Letter of Credit that
is Cash Collateralized pursuant to Section 2.03(g)), no Loan Party shall, nor
shall it permit any Subsidiary to, directly or indirectly:
	 
	 	     8.01     Liens.
	 
	 	     Create, incur, assume or suffer to exist any Lien upon any of its Property
or revenues, whether now owned or hereafter acquired, other than the following:




		
	 	     (a)     Liens pursuant to any Loan Document;




		
	 	     (b)     Liens
existing on the date hereof and listed on Schedule 8.01
and any renewals or extensions thereof, provided that the Property
covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by
Section 8.03(b);
	 
	 	     (c)     Liens (other than Liens imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or which are
being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on
the books of the applicable Person in accordance with GAAP;
	 
	 	     (d)     statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of
title arising in the ordinary course of business, provided that such
Liens secure only amounts not yet due and payable or, if due and payable,
are unfiled and no other action has been taken to enforce the same or are
being contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have been
established;
	 
	 	     (e)     pledges or deposits in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other
social security legislation, other than any Lien imposed by ERISA;
	 
	 	     (f)     deposits to secure the performance of bids, trade contracts,
licenses and leases (other than Indebtedness), statutory obligations,
surety bonds (other than bonds related to judgments or litigation),
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
	 
	 	     (g)     easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract
from the value of the real property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable
Person;
	 
	 	     (h)     Liens securing judgments for the payment of money that do not
constitute an Event of Default pursuant to
Section 9.01(g);



63






 







		
	 	     (i)     Liens
securing Indebtedness permitted under Section 8.03(c) and
any renewals or extensions thereof; provided that (i) such Liens do not
at any time encumber any Property other than the Property financed by
such Indebtedness and (ii) the Indebtedness secured thereby does not
exceed the purchase price of the Property being acquired;
	 
	 	     (j)     leases, licenses or subleases granted to others not interfering
in any material respect with the business of the Borrower or any
Subsidiary;
	 
	 	     (k)     any interest of title of a lessor under, and Liens arising from
Uniform Commercial Code financing statements (or equivalent filings,
registrations or agreements in foreign jurisdictions) relating to, leases
permitted by this Agreement;
	 
	 	     (l)     Liens deemed to exist in connection with Investments in
repurchase agreements permitted under Section 8.02;
	 
	 	     (m)     normal and customary rights of setoff upon deposits of cash in
favor of banks or other depository institutions;
	 
	 	     (n)     Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code (or equivalent in foreign jurisdictions) on items
in the course of collection;
	 
	 	     (o)     Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of business,
covering only the goods sold and securing only the unpaid purchase price
for such goods and related expenses;
	 
	 	     (p)     Liens (to the extent hereafter approved by the Required Lenders
at their discretion) of the export-import bank on the accounts receivable
of the Borrower and its Subsidiaries securing obligations of the Borrower
and its Subsidiaries under letters of credit issued by the export-import
bank for the account of the Borrower or any Subsidiary, or Guarantees by
the export-import bank of letters of credit issued by any other Person
for the account of the Borrower or any Subsidiary, provided that (i) such
Liens shall be second priority Liens (subject to the Liens in favor of
the Administrative Agent under the Collateral Documents) in the accounts
receivable of the Borrower and its Subsidiaries owing by any account
debtor that is organized under the laws of the United States or any state
thereof (it being understood that such Liens may be first priority Liens
in the accounts receivable of the Borrower and its Subsidiaries owing by
any account debtor that is not organized under the laws of the United
States or any state thereof), and (ii) such Liens shall be subject to an
intercreditor agreement;
	 
	 	     (q)     Liens on cash collateral securing (i) the Specified Letters of
Credit, (ii) letters of credit outstanding under the Existing Credit
Facility on the Closing Date, (iii) letters of credit issued under
Section 8.03(l) and (iv) expense and foreign exchange reserves delivered
in connection with the termination of the Existing Credit Agreement;
	 
	 	     (r)     the non-exclusive right granted to The Boeing Company to use
certain property of the Borrower pursuant to that certain letter
agreement dated December 4, 2001 between the Borrower and The Boeing
Company, but only to the extent such right exists on the Closing Date;
and
	 
	 	     (s)     Liens granted to the United States Government pursuant to F.A.R.
52.232-16 and F.A.R. 52.245-5 on certain assets of Borrower or any
Subsidiary in prime contracts with the



64






 







	 	 	United States Government or any United States Agency or as specified
in subcontracts to which the Borrower is a party.




		
	 	     8.02     Investments.
	 
	 	     Make any Investments, except:




		
	 	     (a)     Investments held by the Borrower or such Subsidiary in the form
of cash or Cash Equivalents;
	 
	 	     (b)     Investments existing as of the Closing Date and set forth in
Schedule 8.02;
	 
	 	     (c)     Investments consisting of advances or loans to directors,
officers and employees for travel, entertainment, relocation and
analogous business purposes made in the ordinary course of business on
terms consistent with past practices of the Borrower in an aggregate
principal amount (including Investments of such type set forth in
Schedule 8.02) not to exceed $1,000,000 at any time outstanding;
	 
	 	     (d)     Investments by any Foreign Subsidiary in another Foreign
Subsidiary;
	 
	 	     (e)     Investments by the Borrower or any Domestic Subsidiary in the
Borrower or any Domestic Subsidiary;
	 
	 	     (f)     Investments by the Borrower or any Domestic Subsidiary in
Foreign Subsidiaries in an aggregate principal amount not to exceed
$1,000,000 at any time outstanding;
	 
	 	     (g)     Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade
credit in the ordinary course of business;
	 
	 	     (h)     Investments received in satisfaction or partial satisfaction of
judgments, foreclosures of liens or settlement of debts (whether pursuant
to a plan of reorganization or otherwise);
	 
	 	     (i)     Guarantees permitted by Section 8.03;
	 
	 	     (j)     Permitted Acquisitions;
	 
	 	     (k)     Investments consisting of cash collateral to secure (i) the
Specified Letters of Credit, (ii) letters of credit outstanding under the
Existing Credit Facility on the Closing Date, (iii) letters of credit
issued under Section 8.03(l) and (iv) expense and foreign exchange
reserves delivered in connection with the termination of the Existing
Credit Agreement;
	 
	 	     (l)      Investments in any of the Senior Notes to the extent permitted
pursuant to Section 8.12;
	 
	 	    (m)     obligations under Swap Contracts to the extent permitted under
Section 8.03;
	 
	 	     (n)     Investments made as a result of the receipt of non-cash
consideration from (i) a Disposition permitted by Section 8.05, (ii) the
sale of the Borrower’s Transportation Management Systems division, or
(iii) any licensing of IP Rights not constituting a Disposition;



65






 







		
	 	     (o)     Investments in the Borrower’s 12% Second Priority Secured Notes
due 2006, provided that none of such notes are acquired at a price in
excess of 104% of the principal amount, plus accrued and unpaid interest;
and




		
	 	     (p)     Investments not contemplated in the foregoing clauses in an
amount not to exceed $1,000,000 in the aggregate at any time outstanding.




		
	 	     8.03     Indebtedness.




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




		
	 	     (a)     Indebtedness under the Loan Documents;




		
	 	     (b)     Indebtedness of the Borrower and its Subsidiaries set forth in
(i) Schedule 8.03-1 and renewals, refinancings and extensions thereof on
terms and conditions not materially less favorable to the applicable
debtor(s) and (ii) Schedule 8.03-2 and any increase in the principal
amount of any Indebtedness on such Schedule by an aggregate amount of up
to $1,000,000, and renewals, refinancings and extensions thereof on terms
and conditions not materially less favorable to the applicable debtor(s);
	 
	 	     (c)     purchase money Indebtedness (including obligations in respect of
Capital Leases or Synthetic Leases) hereafter incurred (or assumed in
connection with a Permitted Acquisition) by the Borrower or any of its
Subsidiaries to finance the purchase of fixed assets, provided that (i)
the total of all such Indebtedness for all such Persons taken together
shall not exceed (A) at any time on or before December 31, 2004,
$10,000,000 at any one time outstanding and (B) at any time after
December 31, 2004, $15,000,000 at any one time outstanding, (ii) such
Indebtedness when incurred shall not exceed the purchase price of the
asset(s) financed and (iii) no such Indebtedness shall be refinanced for
a principal amount in excess of the principal balance outstanding thereon
at the time of such refinancing;
	 
	 	     (d)     obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i)
such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or
property held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person, and not for purposes of
speculation or taking a “market view;” and (ii) such Swap Contract does
not contain any provision exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting
party;
	 
	 	     (e)     intercompany Indebtedness permitted under Section 8.02;
	 
	 	     (f)     Indebtedness under the Senior Note Documents in an aggregate
principal amount not to exceed $135,000,000 at any one time outstanding;
	 
	 	     (g)     Indebtedness in respect of letters of credit denominated in a
currency other than Dollars in an aggregate face amount not to exceed the
Dollar equivalent of $5,000,000 at the time of issuance or, in the case
of an increase in the face amount of any such letter of credit, at the
time of such issuance;



66






 







		
	 	     (h)     Indebtedness in respect of (i) letters of credit outstanding
under the Existing Credit Facility, provided that such Letters of Credit
are not extended at any time after the Closing Date and (ii) expense and
foreign exchange reserves delivered in connection with the termination of
the Existing Credit Agreement;
	 
	 	     (i)     performance bonds and surety bonds incurred in the ordinary
course of business;
	 
	 	     (j)     Indebtedness under the Borrower’s 12% Second Priority Secured
Notes due 2006, provided that such Indebtedness is repaid in full by no
later than August 15, 2003;
	 
	 	     (k)     Indebtedness in respect of letters of credit denominated in
Dollars in an aggregate face amount not to exceed $5,000,000 at any time;
	 
	 	     (l)     Indebtedness in respect of one or more letters of credit
denominated in Dollars, provided that, with respect to any such letter of
credit, the Borrower shall have requested that the L/C Issuer issue such
letter of credit under this Agreement and such letter of credit shall not
have been issued by the L/C Issuer solely because the issuance of such
Letter of Credit would violate one or more L/C Issuer Policies;
	 
	 	     (m)     other unsecured Indebtedness in an aggregate principal amount
not to exceed at any time the sum of (i) $10,000,000 minus (ii) the
aggregate face amount of all letters of credit outstanding under Section
8.03(k); and
	 
	 	     (n)     Guarantees with respect to Indebtedness permitted under this
Section 8.03.




		
	 	     8.04     Fundamental Changes.
	 
	 	     Merge, dissolve, liquidate, consolidate with or into another Person, or
Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person; provided that, notwithstanding the foregoing provisions
of this Section 8.04 but subject to the terms of
Sections 7.12 and 7.14, (a)
the Borrower may merge or consolidate with any Subsidiary, provided that the
Borrower shall be the continuing or surviving entity, (b) any Domestic
Subsidiary may merge or consolidate with any other Domestic Subsidiary,
provided that if a Loan Party is a party thereto then a Loan Party shall be the
continuing or surviving entity, (c) any Foreign Subsidiary may merge or
consolidate with any Domestic Subsidiary, provided that a Domestic Subsidiary
shall be the continuing or surviving entity (and if a Loan Party is a party
thereto then a Loan Party shall be the continuing or surviving entity), (d) any
Foreign Subsidiary may be merged or consolidated with or into any other Foreign
Subsidiary, (e) any Subsidiary may merge with any Person that is not a Loan
Party in connection with a Disposition permitted under Section 8.05 or a
Permitted Acquisition provided that, if such transaction involves the Borrower,
the Borrower shall be the continuing or surviving corporation, and (g) any
Wholly Owned Subsidiary may dissolve, liquidate or wind up its affairs at any
time provided that such dissolution, liquidation or winding up, as applicable,
could not reasonably be expected to have a Material Adverse Effect.
	 
	 	     8.05     Dispositions.
	 
	 	     Make any Disposition unless (a) at least seventy-five percent (75%) of the
consideration paid in connection therewith shall be cash or cash equivalents,
shall be received contemporaneous with the consummation of such Disposition and
shall be in an amount not less than the fair market value of the Property
disposed of, (b) if such transaction is a Sale and Leaseback Transaction, such
transaction is not prohibited by the terms of Section 8.15, (c) such
transaction does not involve a sale or other disposition of



67






 







	 	 	receivables other than receivables owned by or attributable to other
Property concurrently being disposed of in a transaction otherwise permitted
under this Section 8.05 or receivables that are being sold because the selling
party reasonably believes that such receivables will be difficult or expensive
to collect, and (d) the aggregate net book value of all of the assets sold or
otherwise disposed of by the Borrower and its Subsidiaries in all Dispositions
in any fiscal year of the Borrower shall not exceed $2,000,000.




		
	 	     8.06     Restricted Payments.
	 
	 	     Declare or make, directly or indirectly, any Restricted Payment, or incur
any obligation (contingent or otherwise) to do so, except that:




		
	 	     (a)     each Subsidiary may make Restricted Payments (directly or
indirectly) to any Loan Party;
	 
	 	     (b)     the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the Capital Stock of
such Persons;
	 
	 	     (c)     the Borrower may repurchase Capital Stock of the Borrower and/or
warrants for the Capital Stock of the Borrower, provided that (i) no
Default shall exist on the date of such repurchase, (ii) the Borrower
shall have delivered to the Administrative Agent a certificate of a
Responsible Officer of the Borrower demonstrating that, upon giving
effect on a Pro Forma Basis to such repurchase, the Loan Parties would be
in compliance with the financial covenants set forth in Section 8.11 as
of the most recent fiscal quarter end for which the Borrower has
delivered financial statements pursuant to Section 7.01(a) or (b), and
(iii) the aggregate amount of all such repurchases shall not exceed the
aggregate amount of proceeds received by the Borrower from the exercise
of warrants;
	 
	 	     (d)     the Borrower may repurchase warrants for the Capital Stock of
the Borrower, provided that (i) no Default shall exist on the date of
such repurchase and (ii) the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer of the
Borrower demonstrating that, upon giving effect on a Pro Forma Basis to
such repurchase, the Loan Parties would be in compliance with the
financial covenants set forth in Section 8.11 as of the most recent
fiscal quarter end for which the Borrower has delivered financial
statements pursuant to Section 7.01(a) or (b);
	 
	 	     (e)     the Borrower may repurchase Capital Stock of the Borrower issued
to employees and directors of the Borrower in an amount necessary to
satisfy such individual’s income tax withholding obligations relating to
the vesting of any restricted stock grants that have been approved by the
Borrower’s Board of Directors or the appropriate committee thereof; and
	 
	 	     (f)     the Borrower may repurchase Capital Stock of the Borrower issued
to employees, directors or managers upon the death, disability or
termination of employment of such person or pursuant to the terms of any
subscription, stockholder or other agreement or plan approved by the
Borrower’s Board of Directors in an aggregate amount not to exceed (i)
$500,000 in any fiscal year or (ii) $2,000,000 during the term of this
Agreement.




		
	 	     8.07      Change in Nature of Business.
	 
	 	     Engage in any material line of business substantially different from those
lines of business conducted by the Borrower and its Subsidiaries on the Closing
Date or any business substantially related or incidental thereto.



68






 







		
	 	     8.08      Transactions with Affiliates and Insiders.




		
	 	     Enter into or permit to exist any transaction or series of transactions
with any officer, director or Affiliate of such Person other than (a)
transactions between Loan Parties, (b) intercompany transactions expressly
permitted by Section 8.02, Section 8.03, Section 8.04, Section 8.05 or Section
8.06, (c) reasonable compensation and reimbursement of expenses of officers and
directors and (d) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of such
Person’s business on terms and conditions substantially as favorable to such
Person as would be obtainable by it in a comparable arms-length transaction
with a Person other than an officer, director or Affiliate.
	 
	 	     8.09     Burdensome Agreements.
	 
	 	     Enter into or permit to exist any Contractual Obligation that encumbers or
restricts the ability of any such Person to (i) pay dividends or make any other
distributions to any Loan Party on its Capital Stock or with respect to any
other interest or participation in, or measured by, its profits, (ii) pay any
Indebtedness or other obligation owed to any Loan Party, (iii) make loans or
advances to any Loan Party, (iv) sell, lease or transfer any of its Property to
any Loan Party, (v) pledge its Property pursuant to the Loan Documents or any
renewals, refinancings, exchanges, refundings or extension thereof or (vi) act
as a Loan Party pursuant to the Loan Documents or any renewals, refinancings,
exchanges, refundings or extension thereof, except (in respect of any of the
matters referred to in clauses (i)-(v) above) for (1) this Agreement and the
other Loan Documents, (2) any document or instrument governing Indebtedness (x)
permitted pursuant to Section 8.03(b) or (y) incurred pursuant to Section
8.03(c), provided that any such restriction contained therein relates only to
the Property financed thereby, (3) any Permitted Lien or any document or
instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted
Lien, (4) customary restrictions and conditions contained in any agreement
relating to the sale of any Property permitted under Section 8.05 pending the
consummation of such sale, (5) non-assignability provisions in contracts
entered into in the ordinary course of business, (6) restrictions on transfer
of the Capital Stock of Subsidiaries that prohibit transfers in contravention
of applicable securities laws, (7) restrictions on the pledge of interests in
any joint venture that is not a Subsidiary contained in the applicable joint
venture agreement and (8) the Senior Note Documents.
	 
	 	     8.10     Use of Proceeds.
	 
	 	     Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry
margin stock (within the meaning of Regulation U of the FRB) or to extend
credit to others for the purpose of purchasing or carrying margin stock or to
refund indebtedness originally incurred for such purpose.
	 
	 	     8.11     Financial Covenants.
	 
	 	     (a)     Consolidated Total Leverage Ratio. Permit the Consolidated Total
Leverage Ratio as of the end of any fiscal quarter of the Borrower set forth
below to be greater than the ratio set forth opposite such fiscal quarter:




	 	 	 
	 	 	Maximum Consolidated
	Fiscal Quarter End	 	Total Leverage Ratio
	
	 	

	September 30, 2003	 	
3.35:1.0
	December 31, 2003	 	
3.35:1.0



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	 	 	Maximum Consolidated
	Fiscal Quarter End	 	Total Leverage Ratio
	
	 	

	March 31, 2004	 	
3.25:1.0
	June 30, 2004	 	
3.25:1.0
	September 30, 2004	 	
3.25:1.0
	December 31, 2004 and
each

fiscal quarter ending thereafter	 	
3.00:1.0




		
	 	     (b)     Consolidated Senior Secured Leverage Ratio. Permit the Consolidated
Senior Secured Leverage Ratio as of the end of any fiscal quarter of the
Borrower to be greater than 1.50:1.0.
	 
	 	     (c)     Consolidated Net Worth. Permit Consolidated Net Worth as of the end
of any fiscal quarter of the Borrower to be less than an amount equal to the
sum of (i) eighty percent (80%) of the sum of (A) Consolidated Net Worth as of
the end of the fiscal quarter ending June 30, 2003 minus (B) debt
extinguishment charges associated with the repayment of the Borrower’s 12%
Second Priority Secured Notes due 2006 and the termination of the Existing
Credit Agreement, plus (ii) on a cumulative basis as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending September
30, 2003, an amount equal to 50% of Consolidated Net Income (to the extent
positive) for the fiscal quarter then ended (provided that, solely for purposes
of this clause (c), the calculation of Consolidated Net Income for the fiscal
quarter ending September 30, 2003 shall exclude the effect of debt
extinguishment charges associated with the repayment of the Borrower’s 12%
Second Priority Secured Notes due 2006 and the termination of the Existing
Credit Facility) plus (iii) 100% of the proceeds of all Equity Issuances after
the Closing Date.
	 
	 	     (d)     Consolidated Fixed Charges Coverage Ratio. Permit the Consolidated
Fixed Charges Coverage Ratio as of the end of any fiscal quarter of the
Borrower to be less than (i) for any fiscal quarter ending during the period
from the Closing Date to (but not including) December 31, 2004, 1.35:1.0 and
(ii) for any fiscal quarter ending thereafter, 1.50:1.0.
	 
	 	     (e)     Minimum Unrestricted Liquidity. The Loan Parties shall at all times
maintain unrestricted cash on deposit in a Payment Account in an aggregate
amount of at least $10,000,000.
	 
	 	     8.12     Senior Note Documents; Repurchase of Senior Notes.
	 
	 	     (a)     Amend or modify any of the terms of any of the Senior Note Documents
if such amendment or modification would add or change any terms in a manner
materially adverse to the Borrower or such Subsidiary (including any amendment
or modification that would shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled or
increase the interest rate applicable thereto).
	 
	 	     (b)     Make (or give any notice with respect thereto) any voluntary or
optional prepayment, redemption, defeasance or acquisition for value of
(including without limitation, by way of depositing money or securities with
the trustee with respect thereto before due for the purpose of paying when
due), or refund, refinance or exchange of any Senior Notes other than:




		
	 	     (i)     regularly scheduled payments of principal and interest;
	 
	 	     (ii)     the repurchase of up to 35% of the aggregate principal amount
of the Senior Notes with the net cash proceeds of any public offering of
the Borrower’s common stock within ninety (90) days of such public
offering, to the extent permitted under the Senior Note Indenture; and



70






 







		
	 	     (iii)     the repurchase of the Senior Notes with cash on hand of the
Borrower and its Subsidiaries, provided that, immediately after giving
effect to such repurchase, the outstanding principal amount of Loans
shall be zero and the Borrower shall have on hand at least $10,000,000 in
cash and Cash Equivalents.




		
	 	     8.13     Organization Documents; Fiscal Year; Legal Name, State of Formation
and Form of Entity; Chief Executive Office.
	 
	 	     (a)     Amend, modify or change its Organization Documents in a manner
materially adverse to the Lenders.
	 
	 	     (b)     Change its fiscal year without thirty days prior written notice to the
Administrative Agent.
	 
	 	     (c)     Unless otherwise approved by the Administrative Agent in writing,
without providing thirty (30) days prior written notice to the Administrative
Agent, change the name, state of formation or form of organization of any Loan
Party.
	 
	 	     8.14     Ownership of Subsidiaries.
	 
	 	     Notwithstanding any other provisions of this Agreement to the contrary,
(i) create, incur, assume or suffer to exist any Lien on any Capital Stock of
any Subsidiary, except for Permitted Liens or (ii) permit any Subsidiary to
issue any shares of preferred Capital Stock to any Person other than the
Borrower or any Subsidiary.
	 
	 	     8.15     Sale and Leaseback Transactions.
	 
	 	     Enter into or permit to exist any Sale and Leaseback Transaction, other
than (i) those Sale and Leaseback Transactions existing on the Closing Date and
described on Schedule 8.15 and (ii) to the extent the Attributable Indebtedness
is permitted under Section 8.03(c).



ARTICLE IX



EVENTS OF DEFAULT AND REMEDIES




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




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




		
	 	     (i)     Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.01, 7.02 or
7.05(a) and such failure continues for five days; or



71






 







		
	 	     (ii)     Any Loan Party fails to perform or observe any term,
covenant or agreement contained in any of Section 7.03, 7.10, 7.11,
7.12(b), 7.15 or Article VIII; or




		
	 	     (c)     Other Defaults. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b)
above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty days after the earlier of
any Responsible Officer of a Loan Party obtaining knowledge thereof or
the Administrative Agent providing notice thereof to the Borrower; or
	 
	 	     (c)     Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of
the Borrower or any other Loan Party herein, in any other Loan Document,
or in any document delivered in connection herewith or therewith shall be
incorrect or misleading in any material respect when made or deemed made;
or
	 
	 	     (d)     Cross-Default. (i) The Borrower or any Subsidiary (A) fails to
make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any
Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount
(including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event (other than
an Involuntary Disposition which is covered by independent third-party
insurance as to which the insurer does not dispute coverage and which
does not constitute a default) occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise),
or an offer to repurchase, prepay, defease or redeem such Indebtedness to
be made, prior to its stated maturity, or such Guarantee to become
payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as
defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is
the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which
the Borrower or any Subsidiary is an Affected Party (as so defined) and,
in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or
	 
	 	     (e)     Insolvency Proceedings, Etc. Any Loan Party institutes or
consents to the institution of any proceeding under any Debtor Relief
Law, or makes an assignment for the benefit of creditors; or applies for
or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its Property; or any receiver, trustee,
custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of such Person and the
appointment continues undischarged or unstayed for sixty calendar days;
or any proceeding under any Debtor Relief Law relating to any such Person
or to all or any material part of its Property is instituted without the
consent of such Person and continues undismissed or unstayed for sixty
calendar days, or an order for relief is entered in any such proceeding;
or



72






 







		
	 	     (f)     Inability to Pay Debts; Attachment. (i) Any Loan Party becomes
unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any
material part of the Property of any such Person and is not released,
vacated or fully bonded within thirty days after its issue or levy; or
	 
	 	     (g)     Judgments. There is entered against any Loan Party one or more
final judgments or orders for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage)
and the same shall not be stayed, bonded or discharged within sixty (60)
days; or
	 
	 	     (h)     ERISA. (i) An ERISA Event occurs with respect to a Pension Plan
or Multiemployer Plan which has resulted or could reasonably be expected
to result in liability of the Borrower under Title IV of ERISA to the
Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in
excess of the Threshold Amount, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal
liability under Section 4201 of ERISA under a Multiemployer Plan in an
aggregate amount in excess of the Threshold Amount; or
	 
	 	     (i)     Invalidity of Loan Documents. Any Loan Document, at any time
after its execution and delivery and for any reason other than as
expressly permitted hereunder or satisfaction in full of all the
Obligations, ceases to be in full force and effect; or any Loan Party
contests in any manner the validity or enforceability of any Loan
Document; or any Loan Party denies that it has any or further liability
or obligation under any Loan Document, or purports to revoke, terminate
or rescind any Loan Document; or
	 
	 	     (j)     Change of Control. There occurs any Change of Control.




		
	 	     9.02
     Remedies Upon Event of Default.
	 
	 	     If any Event of Default occurs and is continuing, the Administrative Agent
shall, at the request of, or may, with the consent of, the Required Lenders,
take any or all of the following actions:




		
	 	     (a)     declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be
terminated, whereupon such commitments and obligation shall be
terminated;
	 
	 	     (b)     declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due
and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Borrower;
	 
	 	     (c)     require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
	 
	 	     (d)     exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or
applicable law;




	 	provided, however, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to



73






 







	 	make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions
shall automatically terminate, the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable, and the obligation of the Borrower to Cash
Collateralize the L/C Obligations as aforesaid shall automatically become
effective, in each case without further act of the Administrative Agent or any
Lender.
	 
	 	Notwithstanding the foregoing, as between the Administrative Agent and the
Lenders, the Administrative Agent agrees that it will not foreclose on, or
otherwise exercise remedies with respect to, any Mortgage Instrument unless the
Administrative Agent has received environmental reports for the real property
subject to such Mortgage Instrument disclosing no environmental liabilities
with respect to such real property or, if any such environmental liabilities
are disclosed, such liabilities shall be reasonably satisfactory to all of the
Lenders. The foregoing sentence is an agreement solely between the
Administrative Agent and the Lenders and is not intended to, and does not,
convey any rights or benefits to any Loan Party.




		
	 	     9.03      Application of Funds.
	 
	 	     After the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on account of the
Obligations shall be applied by the Administrative Agent in the following
order:




	 	 	 	First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and
amounts payable under Article III) payable to the Administrative Agent in
its capacity as such;
	 
	 	 	 	Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable
to the Lenders (including Attorney Costs and amounts payable under
Article III), ratably among them in proportion to the amounts described
in this clause Second payable to them;
	 
	 	 	 	Third, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, fees, premiums and
scheduled periodic payments, and any interest accrued thereon, due under
any Swap Contract between any Loan Party and any Lender, or any Affiliate
of a Lender, to the extent such Swap Contract is permitted by Section
8.03(d), ratably among the Lenders (and, in the case of such Swap
Contracts, Affiliates of Lenders) in proportion to the respective amounts
described in this clause Third held by them;
	 
	 	 	 	Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings and breakage, termination or
other payments, and any interest accrued thereon, due under any Swap
Contract between any Loan Party and any Lender, or any Affiliate of a
Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
and to Cash Collateralize that portion of L/C Obligations comprised of
the aggregate undrawn amount of Letters of Credit, ratably among the
Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders)
in proportion to the respective amounts described in this clause Fourth
held by them; and
	 
	 	 	 	Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by
Law.



74






 







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



ARTICLE X



ADMINISTRATIVE AGENT




		
	 	     10.01      Appointment and Authorization of Administrative Agent.
	 
	 	     (a)     Each Lender hereby irrevocably appoints, designates and authorizes the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Loan Document, the Administrative
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Administrative Agent have or be deemed to have any
fiduciary relationship with any Lender or participant, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent. Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other Loan
Documents with reference to the Administrative Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable Law. Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
	 
	 	     (b)     The L/C Issuer shall act on behalf of the Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith, and the
L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Article X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and the applications and agreements
for letters of credit pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in this Article X and in the definition of
“Agent-Related Person” included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
	 
	 	     10.02      Delegation of Duties.
	 
	 	     The Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.
	 
	 	     10.03     Liability of Administrative Agent.
	 
	 	     No Agent-Related Person shall (a) be liable for any action taken or
omitted to be taken by any of them under or in connection with this Agreement
or any other Loan Document or the transactions contemplated hereby (except for
its own gross negligence or willful misconduct), or (b) be responsible in any
manner to any Lender or participant for any recital, statement, representation
or warranty made by



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	 	any Loan Party or any officer thereof, contained herein or in any other
Loan Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Administrative Agent under
or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of any Loan Party or
any other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any
Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party or any Affiliate thereof.




		
	 	     10.04      Reliance by Administrative Agent.
	 
	 	     (a)     The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to
take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement or any other Loan Document in accordance with a
request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.
	 
	 	     (b)     For purposes of determining compliance with the conditions specified
in Section 5.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or
acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
	 
	 	     10.05      Notice of Default.
	 
	 	     The Administrative Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default, except with respect to defaults in the
payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default and stating that such
notice is a “notice of default.” The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with Article IX; provided, however, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
	 
	 	     10.06      Credit Decision; Disclosure of Information by Administrative Agent.
	 
	 	     Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and



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	 	 	acceptance of any assignment or review of the affairs of any Loan Party or
any Affiliate thereof, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lender as to any matter, including
whether Agent-Related Persons have disclosed material information in their
possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan
Parties and their respective Subsidiaries, and all applicable bank or other
regulatory Laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to the Borrower
and the other Loan Parties hereunder. Each Lender also represents that it
will, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigations as it deems necessary to inform itself as to
the business, prospects, operations, property, financial and other condition
and creditworthiness of the Borrower and the other Loan Parties. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of any of the Loan Parties or any of
their respective Affiliates which may come into the possession of any
Agent-Related Person.




		
	 	     10.07     Indemnification of Administrative Agent.
	 
	 	     Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable for the
payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person’s own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of
this Section. Without limitation of the foregoing, each Lender shall reimburse
the Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Aggregate Revolving Commitments, the payment of all other Obligations and the
resignation of the Administrative Agent.
	 
	 	     10.08     Administrative Agent in its Individual Capacity.
	 
	 	     Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative
Agent or the L/C Issuer hereunder and without notice to or consent of the
Lenders. The Lenders acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding any Loan Party or
its Affiliates (including information that may be subject to confidentiality
obligations in favor of such Loan Party or



77






 







	 	such Affiliate) and acknowledge that the Administrative Agent shall be
under no obligation to provide such information to them. With respect to its
Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms “Lender”
and “Lenders” include Bank of America in its individual capacity.




		
	 	     10.09     Successor Administrative Agent.
	 
	 	     The Administrative Agent may resign as Administrative Agent upon thirty
days’ notice to the Lenders; provided that any such resignation by Bank of
America shall also constitute its resignation as L/C Issuer and Swing Line
Lender. If the Administrative Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent
for the Lenders, which successor administrative agent shall be consented to by
the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, L/C Issuer and
Swing Line Lender and the respective terms “Administrative Agent”, “L/C Issuer”
and “Swing Line Lender” shall mean such successor administrative agent, Letter
of Credit issuer and swing line lender, and the retiring Administrative Agent’s
appointment, powers and duties as Administrative Agent shall be terminated and
the retiring L/C Issuer’s and Swing Line Lender’s rights, powers and duties as
such shall be terminated, without any other or further act or deed on the part
of such retiring L/C Issuer or Swing Line Lender or any other Lender, other
than the obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit. After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Article X
and Sections 11.04 and 11.05 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date thirty days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the
Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above.
	 
	 	     10.10      Administrative Agent May File Proofs of Claim.
	 
	 	     In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to any Loan Party, the Administrative
Agent (irrespective of whether the principal of any Loan or L/C Obligation
shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether the Administrative Agent shall have made
any demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise:




		
	 	     (a)     to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations
and all other Obligations that are owing and unpaid and to file such
other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of
the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the



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	 	 	 	Administrative Agent under
Sections 2.03(i) and (j), 2.09 and
11.04)
allowed in such judicial proceeding; and




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




	 	and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 11.04.




		
	 	     Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative
Agent to vote in respect of the claim of any Lender in any such proceeding.




		
	 	     10.11     Collateral and Guaranty Matters.
	 
	 	     The Lenders irrevocably authorize the Administrative Agent, at its option
and in its discretion,




		
	 	     (a)     to release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Revolving Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document or any Involuntary
Disposition, or (iii) as approved in accordance with Section 11.01;
	 
	 	     (b)     to subordinate any Lien on any Property granted to or held by
the Administrative Agent under any Loan Document to the holder of any
Lien on such Property that is permitted by Section 8.01(i); and
	 
	 	     (c)     to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
	 
	 	     Upon request by the Administrative Agent or the Borrower at any time, the
Required Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular types or
items of Property, or to release any Guarantor from its obligations under
the Guaranty, pursuant to this Section 10.11.




		
	 	     10.12     Other Agents; Arrangers and Managers.




		
	 	     None of the Lenders or other Persons identified on the facing page or
signature pages of this Agreement as a “syndication agent,” “documentation
agent,” “co-agent,” “book manager,” “lead manager,” “arranger,” “lead arranger”
or “co-arranger” shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than, in the case of such
Lenders, those applicable to all Lenders as such. Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders or other Persons
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.



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ARTICLE XI



MISCELLANEOUS




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




		
	 	     (a)     extend or increase the Revolving Commitment of any Lender (or
reinstate any Revolving Commitment terminated pursuant to Section 9.02)
without the written consent of such Lender (it being understood and
agreed that a waiver of any condition precedent set forth in Section 5.02
or of any Default or Event of Default or a mandatory reduction in
Revolving Commitments is not considered an extension or increase in
Revolving Commitments of any Lender);
	 
	 	     (b)     increase the amount of the Aggregate Revolving Commitments to an
amount greater than $75,000,000 without the consent of each Lender;
	 
	 	     (c)     postpone any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts
due to the Lenders (or any of them) hereunder or under any other Loan
Document without the written consent of each Lender directly affected
thereby;
	 
	 	     (d)     reduce the principal of, or the rate of interest specified
herein on, any Loan or L/C Borrowing, or any fees or other amounts
payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary to amend the
definition of “Default Rate” or to waive any obligation of the Borrower
to pay interest at the Default Rate;
	 
	 	     (e)     change Section 2.13 or Section 9.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written
consent of each Lender directly affected thereby;
	 
	 	     (f)     change any provision of this Section or the definition of
“Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any
rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender directly affected thereby;
	 
	 	     (g)     except in connection with a Disposition permitted under Section
8.05, release all or substantially all of the Collateral without the
written consent of each Lender directly affected thereby; or
	 
	 	     (h)     release the Borrower or, except in connection with a merger or
consolidation permitted under Section 8.04 or a Disposition permitted
under Section 8.05, all or substantially all



80






 







	 	 	 	of the Guarantors, from its or their obligations under the Loan Documents without the written consent
of each Lender directly affected thereby;




	 	 	and, provided further, that (i) except in connection with an increase in the
Aggregate Revolving Commitments pursuant to Section 2.01(b), no amendment,
waiver or consent shall, unless in writing and signed by the L/C Issuer in
addition to the Lenders required above, affect the rights or duties of the L/C
Issuer under this Agreement or any Letter of Credit Application relating to any
Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or
consent shall, unless in writing and signed by the Swing Line Lender in
addition to the Lenders required above, affect the rights or duties of the
Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. Notwithstanding anything to the contrary
herein, no Defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Revolving Commitment of
such Lender may not be increased or extended without the consent of such
Lender.
	 
	 	 	Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (x) each Lender is entitled to vote
as such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein and (y) the Required Lenders shall determine whether or not to allow a
Loan Party to use cash collateral in the context of a bankruptcy or insolvency
proceeding and such determination shall be binding on all of the Lenders.




		
	 	     11.02      Notices and Other Communications; Facsimile Copies.
	 
	 	     (a)     General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:




		
	 	     (i)     if to the Borrower, the Administrative Agent, the L/C Issuer or
the Swing Line Lender, to the address, facsimile number, electronic mail
address or telephone number specified for such Person on Schedule 11.02
or to such other address, facsimile number, electronic mail address or
telephone number as shall be designated by such party in a notice to the
other parties; and
	 
	 	     (ii)     if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its
Administrative Questionnaire or to such other address, facsimile number,
electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender.




		
	 	     All such notices and other communications shall be deemed to be given or
made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or
on behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below), when
delivered; provided, however, that notices and other



81






 







	 	 	communications to the
Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant to
Article II shall not be effective until actually received by such Person. In
no event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.




		
	 	     (b)     Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually signed original thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
document or signature.
	 
	 	     (c)     Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, such
as financial statements and other information as provided in Section 7.02, and
to distribute Loan Documents for execution by the parties thereto, and may not
be used for any other purpose.
	 
	 	     (d)     Reliance by Administrative Agent and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. All
telephonic notices to and other communications with the Administrative Agent
may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.
	 
	 	     11.03     No Waiver; Cumulative Remedies.
	 
	 	     No failure by any Lender or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power
or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
	 
	 	     11.04     Attorney Costs, Expenses and Taxes.




		
	 	     The Borrower agrees (a) to pay or reimburse the Administrative Agent for
all reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation, negotiation and execution of this Agreement and the
other Loan Documents and any amendment, waiver, consent or other modification
of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and
administration of the transactions contemplated hereby and thereby, including
all Attorney Costs and costs and expenses in connection with the use of
Intralinks, Inc. or other similar information transmission systems in
connection with this Agreement, (b) to pay or reimburse the Documentation Agent
for all reasonable out-of-pocket costs and expenses incurred in connection with
the development, preparation, negotiation and execution of this Agreement and
the other Loan Documents and (c) to pay or reimburse the Administrative Agent,
the Documentation Agent and each Lender for all costs and expenses incurred in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any
“workout” or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor



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	 	 	Relief Law), including all Attorney Costs. The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the
Administrative Agent and the cost of independent public accountants and other
outside experts reasonably retained by the Administrative Agent or any Lender.
All amounts due under this Section 11.04 shall be payable within ten Business
Days after demand therefor. The agreements in this Section shall survive the
termination of the Aggregate Revolving Commitments and repayment of all other
Obligations.




		
	 	     11.05      Indemnification by the Borrower.
	 
	 	     Whether or not the transactions contemplated hereby are consummated, the
Borrower agrees to indemnify and hold harmless each Agent-Related Person, the
Documentation Agent, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
“Indemnitees”) from and against any and all liabilities, obligations, losses,
damages, penalties, claims, demands, actions, judgments and suits, and all
reasonable and actual costs, expenses and disbursements (including Attorney
Costs), which may at any time be imposed on, incurred by or asserted against
any such Indemnitee in any way relating to or arising out of or in connection
with (a) the execution, delivery, enforcement, performance or administration of
any Loan Document or any other agreement, letter or instrument delivered in
connection with the transactions contemplated thereby or the consummation of
the transactions contemplated thereby, (b) any Revolving Commitment, Loan or
Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (c) any actual or
alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower, any Subsidiary or any
other Loan Party, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the
“Indemnified Liabilities”); provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction
by final and nonappealable judgment to have resulted from the gross negligence
or willful misconduct of such Indemnitee. No Indemnitee shall be liable for
any damages arising from the use by others of any information or other
materials obtained through IntraLinks or other similar information transmission
systems in connection with this Agreement, nor shall any Indemnitee have any
liability for any indirect or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection
herewith or therewith (whether before or after the Closing Date). All amounts
due under this Section 11.05 shall be payable within ten Business Days after
demand therefor. The agreements in this Section shall survive the resignation
of the Administrative Agent, the replacement of any Lender, the termination of
the Aggregate Revolving Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
	 
	 	     11.06     Payments Set Aside.




		
	 	     To the extent that any payment by or on behalf of any Loan Party is made
to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid to a
trustee, receiver or any other party, in connection with any proceeding under
any Debtor Relief Law or otherwise, then (a) to the extent



83






 







	 	of such recovery,
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such set-off had not occurred, and (b) each Lender severally agrees to
pay to the Administrative Agent upon demand its applicable share of any amount
so recovered from or repaid by the Administrative Agent, plus interest thereon
from the date of such demand to the date such payment is made at a rate per
annum equal to the Federal Funds Rate from time to time in effect.




		
	 	     11.07     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 no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Indemnitees) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
	 
	 	     (b)     Any Lender may at any time assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Revolving Commitment and the Loans (including for
purposes of this subsection (b), participations in L/C Obligations and in Swing
Line Loans) at the time owing to it); provided that (i) except in the case of
an assignment of the entire remaining amount of the assigning Lender’s
Revolving Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender with respect to a Lender,
the aggregate amount of the Revolving Commitment (which for this purpose
includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $2,500,000 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 Loans or the Revolving Commitment assigned, except that this
clause (ii) shall not apply to rights in respect of Swing Line Loans; (iii) any
assignment of a Revolving Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections
3.01, 3.04, 3.05, 11.04 and 11.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon



84






 







	 	request, the Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.




		
	 	     (c)     The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent’s Office a copy of
each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Revolving
Commitments of, and principal amounts of the Loans and L/C Obligations owing
to, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and
any Lender, at any reasonable time and from time to time upon reasonable prior
notice.
	 
	 	     (d)     Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Revolving Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the Borrower,
the Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 11.01 that directly
affects such Participant. Subject to subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to subsection (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.09 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.
	 
	 	     (e)     A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower’s
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 3.01 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
11.15 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 (including under its Note, if
any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; provided that no such pledge
or assignment shall release such Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
	 
	 	     (g)     Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Revolving Commitment and Loans pursuant
to subsection (b) above, Bank of



85






 







	 	America may, (i) upon thirty days’ notice to
the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon thirty
days’ notice to the Borrower, resign as Swing Line Lender. In the event of any
such resignation as L/C Issuer or Swing Line Lender, the Borrower shall be
entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line
Lender hereunder; provided, however, that no failure by the Borrower to appoint
any such successor shall affect the resignation of Bank of America as L/C
Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as
L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).
If Bank of America resigns as Swing Line Lender, it shall retain all the rights
of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation,
including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to Section 2.04(c).




		
	 	     11.08     Confidentiality.
	 
	 	     Each of the Administrative Agent and the Lenders agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates’ directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and must agree to keep such
Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this
Agreement; (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any Eligible Assignee
of or Participant in, or any prospective Eligible Assignee of or Participant
in, any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such
contractual counterparty’s or prospective counterparty’s professional advisor)
to any credit derivative transaction relating to obligations of the Loan
Parties; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Borrower; or (i)
to the National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender’s or its Affiliates’ investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
In addition, the Administrative Agent and the Lenders may disclose the
existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service
providers to the Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents, the
Revolving Commitments, and the Credit Extensions. For the purposes of this
Section, “Information” means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information
that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by any Loan Party; provided that, in
the case of information received from a Loan Party after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information. Notwithstanding anything herein to
the contrary, “Information” shall not include, and the Administrative
Agent and each Lender may disclose without limitation of any kind, any
information with respect to the “tax treatment” and “tax structure” (in each
case, within the meaning of Treasury Regulation Section



86






 







	 	1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Administrative Agent
or such Lender relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to the tax treatment or tax structure
of the Loans, Letters of Credit and transactions contemplated hereby.




		
	 	     11.09      Set-off.
	 
	 	     In addition to any rights and remedies of the Lenders provided by law,
upon the occurrence and during the continuance of any Event of Default, with
the prior consent of the Administrative Agent, each Lender and any Affiliate of
a Lender is authorized at any time and from time to time, without prior notice
to the Borrower or any other Loan Party, any such notice being waived by the
Borrower (on its own behalf and on behalf of each Loan Party) to the fullest
extent permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender to or for the credit or the
account of the respective Loan Parties against any and all Obligations owing to
such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such
Lender shall have made demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured or denominated in
a currency different from that of the applicable deposit or indebtedness. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent
after any such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of such
set-off and application.
	 
	 	     11.10     Interest Rate Limitation.
	 
	 	     Notwithstanding anything to the contrary contained in any Loan Document,
the interest paid or agreed to be paid under the Loan Documents shall not
exceed the maximum rate of non-usurious interest permitted by applicable Law
(the “Maximum Rate”). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and
spread in equal or unequal parts the total amount of interest throughout the
contemplated term of the Obligations hereunder.
	 
	 	     11.11     Counterparts.
	 
	 	     This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
	 
	 	     11.12     Integration.
	 
	 	     This Agreement, together with the other Loan Documents, comprises the
complete and integrated agreement of the parties on the subject matter hereof
and thereof and supersedes all prior agreements, written or oral, on such
subject matter. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with
this Agreement. Each Loan



87






 







	 	 	Document was drafted with the joint participation of
the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.




		
	 	     11.13      Survival of Representations and Warranties.
	 
	 	     All representations and warranties made hereunder and in any other Loan
Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery
hereof and thereof. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any
investigation made by the Administrative Agent or any Lender or on their behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.
	 
	 	     11.14     Severability.
	 
	 	     If any provision of this Agreement or the other Loan Documents is held to
be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
	 
	 	     11.15     Tax Forms.




		
	 	     (a)     (i) Each Lender that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Internal Revenue Code (a “Foreign
Lender”) shall deliver to the Administrative Agent, prior to receipt of
any payment subject to withholding under the Internal Revenue Code (or
upon accepting an assignment of an interest herein), two duly signed
completed copies of either IRS Form W-8BEN or any successor thereto
(relating to such Foreign Lender and entitling it to an exemption from,
or reduction of, withholding tax on all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or IRS Form
W-8ECI or any successor thereto (relating to all payments to be made to
such Foreign Lender by the Borrower pursuant to this Agreement) or such
other evidence satisfactory to the Borrower and the Administrative Agent
that such Foreign Lender is entitled to an exemption from, or reduction
of, U.S. withholding tax, including any exemption pursuant to Section
881(c) of the Internal Revenue Code. Thereafter and from time to time,
each such Foreign Lender shall (A) promptly submit to the Administrative
Agent such additional duly completed and signed copies of one of such
forms (or such successor forms as shall be adopted from time to time by
the relevant United States taxing authorities) as may then be available
under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Administrative Agent
of any available exemption from or reduction of, United States
withholding taxes in respect of all payments to be made to such Foreign
Lender by the Borrower pursuant to this Agreement, (B) promptly notify
the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take
such steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Lender, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or
withholding for taxes from amounts payable to such Foreign Lender.



88






 







		
	 	     (ii)     Each Foreign Lender, to the extent it does not act or ceases to
act for its own account with respect to any portion of any sums paid or
payable to such Lender under any of the Loan Documents (for example, in
the case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or
payable, and at such other times as may be necessary in the determination
of the Administrative Agent (in the reasonable exercise of its
discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Lender as set forth above, to
establish the portion of any such sums paid or payable with respect to
which such Lender acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Internal Revenue Code, to
establish that such Lender is not acting for its own account with respect
to a portion of any such sums payable to such Lender.




		
	 	     (iii)     The Borrower shall not be required to pay any additional
amount to any Foreign Lender under Section 3.01 (A) with respect to any
Taxes required to be deducted or withheld on the basis of the
information, certificates or statements of exemption such Lender
transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or
(B) if such Lender shall have failed to satisfy the foregoing provisions
of this Section 11.15(a); provided that if such Lender shall have
satisfied the requirement of this Section 11.15(a) on the date such
Lender became a Lender or ceased to act for its own account with respect
to any payment under any of the Loan Documents, nothing in this Section
11.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to Section 3.01 in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application thereof,
such Lender is no longer properly entitled to deliver forms, certificates
or other evidence at a subsequent date establishing the fact that such
Lender or other Person for the account of which such Lender receives any
sums payable under any of the Loan Documents is not subject to
withholding or is subject to withholding at a reduced rate.




		
	 	     (iv)     The Administrative Agent may, without reduction, withhold any
Taxes required to be deducted and withheld from any payment under any of
the Loan Documents with respect to which the Borrower is not required to
pay additional amounts under this Section 11.15(a).
	 
	 	     (b)     Upon the request of the Administrative Agent, each Lender that
is a “United States person” within the meaning of Section 7701(a)(30) of
the Internal Revenue Code shall deliver to the Administrative Agent two
duly signed completed copies of IRS Form W-9. If such Lender fails to
deliver such forms, then the Administrative Agent may withhold from any
interest payment to such Lender an amount equivalent to the applicable
back-up withholding tax imposed by the Internal Revenue Code, without
reduction.
	 
	 	     (c)     If any Governmental Authority asserts that the Administrative
Agent did not properly withhold or backup withhold, as the case may be,
any tax or other amount from payments made to or for the account of any
Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any
jurisdiction on the amounts payable to the Administrative Agent under
this Section, and costs and expenses (including Attorney Costs) of the
Administrative Agent. The obligation of the Lenders under this Section
shall survive the termination of the Aggregate Revolving Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.



89






 







		
	 	     11.16      Replacement of Lenders.




		
	 	     Under any circumstances set forth herein providing that the Borrower
shall have the right to replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative
Agent, replace such Lender by causing such Lender to assign its Revolving
Commitment and outstanding Loans (with the assignment fee to be paid by
the Borrower in such instance) pursuant to Section 11.07(b) to one or
more other Lenders or Eligible Assignees procured by the Borrower. The
Borrower shall (x) pay in full all principal, interest, fees and other
amounts owing to such Lender through the date of replacement (including
any amounts payable pursuant to Section 3.05), (y) provide appropriate
assurances and indemnities (which may include letters of credit) to the
L/C Issuer and the Swing Line Lender as each may reasonably require with
respect to any continuing obligation to fund participation interests in
any L/C Obligations or any Swing Line Loans then outstanding, and (z)
release such Lender from its obligations under the Loan Documents. Any
Lender being replaced shall execute and deliver an Assignment and
Assumption with respect to such Lender’s Revolving Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line
Loans.




		
	 	     11.17     Release of Collateral and Guarantees.




		
	 	     The Administrative Agent hereby agrees with the Borrower that the
Administrative Agent shall, upon the request of the Borrower:




		
	 	     (a)     release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Revolving Commitments and payment in full of all Obligations
(other than contingent indemnification obligations) and the expiration or
termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted
hereunder or under any other Loan Document or any Involuntary
Disposition, or (iii) as approved in accordance with Section 11.01;
	 
	 	     (b)     subordinate any Lien on any Property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on
such Property that is permitted by Section 8.03(c); and
	 
	 	     (c)     release any Guarantor from its obligations under the Guaranty if
such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.




		
	 	     11.18      Governing Law.
	 
	 	     (a)     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT
AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
	 
	 	     (b)     ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK, NEW YORK, OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
THE BORROWER, THE ADMINISTRATIVE AGENT AND



90






 







	 	EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY THE LAW OF SUCH STATE.




		
	 	     11.19     Waiver of Right to Trial by Jury.
	 
	 	     EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN
DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE
TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



[SIGNATURE PAGES FOLLOW]



91






 






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




	 	 	 	 	 	 	 
	BORROWER:	 	ORBITAL SCIENCES CORPORATION,
 a Delaware corporation
	 	 	 	 	 	 	 
	 	 	
By: /s/ Michael R. Williams	 	 	 
	 	 	 	
	 	 
	 	 	
Name: Michael R. Williams	 	 	 
	 	 	
Title: Senior Vice President and Treasurer	 	 	 
	 	 	 	 	 	 	 
	ADMINISTRATIVE	 	 	 	 	 	 
	AGENT:	 	BANK OF AMERICA, N.A., as Administrative Agent 
	 	 	 	 	 	 	 
	 	 	
By:/s/ Michael Brashler	 	 	 
	 	 	 	
	 	 
	 	 	
Name: Michael Brashler	 	 	 	 
	 	 	
Title: Vice President	 	 	 	 
	 	 	 	 	 	 	 
	LENDER:	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender
	 	 	 	 	 	 	 
	 	 	
By: /s/ Michael J. Landini	 	 	 
	 	 	 	
	 	 
	 	 	
Name: Michael J. Landini	 	 	 
	 	 	
Title: Senior Vice President	 	 	 
	 	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION
	 	 	 	 	 	 	 
	 	 	
By: /s/ E. J. Hess	 	 	 
	 	 	 	
	 	 
	 	 	
Name: E. J. Hess	 	 	 
	 	 	Title:
Duly Authorized Signatory