exv10w32



Table of Contents



EXHIBIT 10.32















CREDIT AGREEMENT



dated as of



January 20, 2004



among



PEROT SYSTEMS CORPORATION,

as Borrower,



THE LENDERS PARTIES HERETO,



JPMORGAN CHASE BANK,

as Administrative Agent,



KEYBANK NATIONAL ASSOCIATION AND SUNTRUST
BANK,

as Co-Syndication Agents, and



WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Documentation Agent











J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger













 














TABLE OF CONTENTS




									
	ARTICLE I. Definitions
		SECTION 1.01. Defined Terms
		SECTION 1.02. Classification of Loans and Borrowings
		SECTION 1.03. Terms Generally
		SECTION 1.04. Accounting Terms; GAAP
	ARTICLE II. The Credits
		SECTION 2.01. Commitments
		SECTION 2.02. Loans and Borrowings
		SECTION 2.03. Requests for Borrowings
		SECTION 2.04. Reserved
		SECTION 2.05. Reserved
		SECTION 2.06. Letters of Credit
		SECTION 2.07. Funding of Borrowings
		SECTION 2.08. Interest Elections
		SECTION 2.09. Termination, Reduction and Increase of Commitments
		SECTION 2.10. Repayment of Loans; Evidence of Debt
		SECTION 2.11. Prepayment of Loans
		SECTION 2.12. Fees
		SECTION 2.13. Interest
		SECTION 2.14. Alternate Rate of Interest
		SECTION 2.15. Increased Costs
		SECTION 2.16. Break Funding Payments
		SECTION 2.17. Taxes
		SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
		SECTION 2.19. Mitigation Obligations; Replacement of Lenders
	 ARTICLE III. Representations and Warranties
		SECTION 3.01. Organization; Power
		SECTION 3.02. Authorization; Enforceability
		SECTION 3.03. Governmental Approvals; No Conflicts
		SECTION 3.04. Financial Condition; No Material Adverse Change
		SECTION 3.05. Title to Properties
		SECTION 3.06. Litigation
		SECTION 3.07. Compliance with Laws
		SECTION 3.08. Investment and Holding Company Status
		SECTION 3.09. Taxes
		SECTION 3.10. ERISA
		SECTION 3.11. Disclosure
		SECTION 3.12. Subsidiaries
		 SECTION 3.13. Environmental Matters
		SECTION 3.14. Intellectual Property
		SECTION 3.15. Margin Stock
		SECTION 3.16. Labor Matters
		 SECTION 3.17. Solvency
	ARTICLE IV. Conditions
		SECTION 4.01. Effective Date
		SECTION 4.02. Each Credit Event
	 ARTICLE V. Affirmative Covenants
		SECTION 5.01. Financial Statements and Other Information
		SECTION 5.02. Notices of Material Events
		 SECTION 5.03. Existence; Conduct of Business
		SECTION 5.04. Payment of Obligations
		SECTION 5.05. Maintenance of Properties; Insurance
		SECTION 5.06. Books and Records; Inspection Rights
		SECTION 5.07. Compliance with Laws
		SECTION 5.08. Use of Proceeds and Letters of Credit
		SECTION 5.09. Preservation and Protection of Rights
		 SECTION 5.10. Environmental Laws
		SECTION 5.11. Minimum Recourse Coverage; Additional Guarantors and Pledged Equity Interests
	ARTICLE VI. Negative Covenants
		SECTION 6.01. Subsidiary Debt
		SECTION 6.02. Liens
		SECTION 6.03. Fundamental Changes
		SECTION 6.04. Acquisitions
		SECTION 6.05. Swap Agreements
		SECTION 6.06. Transactions with Affiliates
		SECTION 6.07. Agreements Restricting Subsidiaries
		SECTION 6.08. Financial Covenants
	ARTICLE VII. Events of Default
	ARTICLE VIII. The Administrative Agent
	 ARTICLE IX. Miscellaneous
		SECTION 9.01. Notices
		SECTION 9.02. Waivers; Amendments
		SECTION 9.03. Expenses; Indemnity; Damage Waiver
		SECTION 9.04. Successors and Assigns
		SECTION 9.05. Survival
		SECTION 9.06. Counterparts; Effectiveness
		SECTION 9.07. Severability
		SECTION 9.08. Governing Law; Jurisdiction; Consent to Service of Process
		SECTION 9.09. WAIVER OF JURY TRIAL
		SECTION 9.10. Headings
		SECTION 9.11. Confidentiality
		SECTION 9.12. Interest Rate Limitation
		SECTION 9.13. Inapplicability of Chapter 346 et seq
		SECTION 9.14. Waiver of Consumer Rights
		 SECTION 9.15. Co-Syndication Agents and Documentation Agent
		SECTION 9.16. FINAL AGREEMENT








Table of Contents






TABLE OF CONTENTS




	 	 	 	 	 	 
	 	 	 	Page
	 	 	 	

	ARTICLE I. Definitions
	 	 	1	 
	 	SECTION
1.01. Defined Terms
	 	 	1	 
	 	SECTION
1.02. Classification of Loans and Borrowings
	 	 	16	 
	 	SECTION
1.03. Terms Generally
	 	 	16	 
	 	SECTION
1.04. Accounting Terms; GAAP
	 	 	17	 
	ARTICLE II. The Credits
	 	 	17	 
	 	SECTION
2.01. Commitments
	 	 	17	 
	 	SECTION
2.02. Loans and Borrowings
	 	 	17	 
	 	SECTION
2.03. Requests for Borrowings
	 	 	18	 
	 	SECTION
2.04. Reserved
	 	 	18	 
	 	SECTION
2.05. Reserved
	 	 	18	 
	 	SECTION
2.06. Letters of Credit
	 	 	19	 
	 	SECTION
2.07. Funding of Borrowings
	 	 	23	 
	 	SECTION
2.08. Interest Elections
	 	 	23	 
	 	SECTION
2.09. Termination, Reduction and Increase of Commitments
	 	 	24	 
	 	SECTION
2.10. Repayment of Loans; Evidence of Debt
	 	 	25	 
	 	SECTION
2.11. Prepayment of Loans
	 	 	26	 
	 	SECTION
2.12. Fees
	 	 	27	 
	 	SECTION
2.13. Interest
	 	 	28	 
	 	SECTION
2.14. Alternate Rate of Interest
	 	 	28	 
	 	SECTION
2.15. Increased Costs
	 	 	29	 
	 	SECTION
2.16. Break Funding Payments
	 	 	30	 
	 	SECTION
2.17. Taxes
	 	 	30	 
	 	SECTION
2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs
	 	 	32	 
	 	SECTION
2.19. Mitigation Obligations; Replacement of Lenders
	 	 	33	 
	ARTICLE III. Representations and Warranties
	 	 	34	 
	 	SECTION
3.01. Organization; Power
	 	 	34	 
	 	SECTION
3.02. Authorization; Enforceability
	 	 	35	 
	 	SECTION
3.03. Governmental Approvals; No Conflicts
	 	 	35	 
	 	SECTION
3.04. Financial Condition; No Material Adverse Change
	 	 	35	 
	 	SECTION
3.05. Title to Properties
	 	 	36	 
	 	SECTION
3.06. Litigation
	 	 	36	 
	 	SECTION
3.07. Compliance with Laws
	 	 	36	 
	 	SECTION
3.08. Investment and Holding Company Status
	 	 	36	 
	 	SECTION
3.09. Taxes
	 	 	36	 
	 	SECTION
3.10. ERISA
	 	 	36	 
	 	SECTION
3.11. Disclosure
	 	 	37	 
	 	SECTION
3.12. Subsidiaries
	 	 	37	 
	 	SECTION
3.13. Environmental Matters
	 	 	37	 
	 	SECTION
3.14. Intellectual Property
	 	 	37	 
	 	SECTION
3.15. Margin Stock
	 	 	38	 



i






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	 	 	 	Page
	 	 	 	

	 	SECTION
3.16. Labor Matters
	 	 	38	 
	 	SECTION
3.17. Solvency
	 	 	38	 
	ARTICLE IV. Conditions
	 	 	38	 
	 	SECTION
4.01. Effective Date
	 	 	38	 
	 	SECTION
4.02. Each Credit Event
	 	 	40	 
	ARTICLE V. Affirmative Covenants
	 	 	40	 
	 	SECTION
5.01. Financial Statements and Other Information
	 	 	40	 
	 	SECTION
5.02. Notices of Material Events
	 	 	41	 
	 	SECTION
5.03. Existence; Conduct of Business
	 	 	42	 
	 	SECTION
5.04. Payment of Obligations
	 	 	42	 
	 	SECTION
5.05. Maintenance of Properties; Insurance
	 	 	42	 
	 	SECTION
5.06. Books and Records; Inspection Rights
	 	 	43	 
	 	SECTION
5.07. Compliance with Laws
	 	 	43	 
	 	SECTION
5.08. Use of Proceeds and Letters of Credit
	 	 	43	 
	 	SECTION
5.09. Preservation and Protection of Rights
	 	 	43	 
	 	SECTION
5.10. Environmental Laws
	 	 	43	 
	 	SECTION
5.11. Minimum Recourse Coverage; Additional
Guarantors and Pledged Equity Interests
	 	 	44	 
	ARTICLE VI. Negative Covenants
	 	 	46	 
	 	SECTION
6.01. Subsidiary Debt
	 	 	46	 
	 	SECTION
6.02. Liens
	 	 	46	 
	 	SECTION
6.03. Fundamental Changes
	 	 	47	 
	 	SECTION
6.04. Acquisitions
	 	 	47	 
	 	SECTION
6.05. Swap Agreements
	 	 	47	 
	 	SECTION
6.06. Transactions with Affiliates
	 	 	48	 
	 	SECTION
6.07. Agreements Restricting Subsidiaries
	 	 	48	 
	 	SECTION
6.08. Financial Covenants
	 	 	48	 
	ARTICLE VII. Events of Default
	 	 	49	 
	ARTICLE VIII. The Administrative Agent
	 	 	52	 
	ARTICLE IX. Miscellaneous
	 	 	54	 
	 	SECTION
9.01. Notices
	 	 	54	 
	 	SECTION
9.02. Waivers; Amendments
	 	 	55	 
	 	SECTION
9.03. Expenses; Indemnity; Damage Waiver
	 	 	55	 
	 	SECTION
9.04. Successors and Assigns
	 	 	57	 
	 	SECTION
9.05. Survival
	 	 	60	 
	 	SECTION
9.06. Counterparts; Effectiveness
	 	 	60	 
	 	SECTION
9.07. Severability
	 	 	61	 
	 	SECTION
9.08. Governing Law; Jurisdiction; Consent to Service of
Process
	 	 	61	 
	 	SECTION
9.09. WAIVER OF JURY TRIAL
	 	 	61	 
	 	SECTION
9.10. Headings
	 	 	62	 
	 	SECTION
9.11. Confidentiality
	 	 	62	 



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	 	 	 	Page
	 	 	 	

	 	SECTION
9.12. Interest Rate Limitation
	 	 	62	 
	 	SECTION
9.13. Inapplicability of Chapter 346 et seq
	 	 	63	 
	 	SECTION
9.14. Waiver of Consumer Rights
	 	 	63	 
	 	SECTION
9.15. Co-Syndication Agents and Documentation Agent
	 	 	63	 
	 	SECTION
9.16. FINAL AGREEMENT
	 	 	64	 



     SCHEDULES:


     Schedule 1.01
– Disclosed Matters


     Schedule 2.01
– Commitments


     Schedule 3.12
– Subsidiaries


     EXHIBITS:


     Exhibit A
– Form of Assignment and Assumption


     Exhibit B
– Form of Guaranty Agreement


     Exhibit C
– Form of Pledge Agreement


     Exhibit D-1
– Form of Opinion of Counsel to the Credit Parties


     Exhibit D-2
– Form of Opinion of Associate General Counsel of the Borrower


iii






Table of Contents


     CREDIT AGREEMENT
dated as of January 20, 2004 among PEROT SYSTEMS
CORPORATION, a Delaware corporation (the “Borrower”), the LENDERS
party hereto,
JPMORGAN CHASE BANK, as Administrative Agent, KEYBANK NATIONAL ASSOCIATION and
SUNTRUST BANK, as Co-Syndication Agents, and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agent (as amended, restated, supplemented or
otherwise modified from time to time, this “Agreement”).


     The parties hereto
agree as follows:





ARTICLE I.



Definitions






     SECTION 1.01.
Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:


     “ABR”,
when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.


     “Acquisition” has the meaning
assigned to such term in Section 6.04.


     “Adjusted LIBO
Rate” means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period
multiplied by (b) the Statutory Reserve Rate.


     “Adjustment
Date” means, with respect to the calculation of the Applicable
Rate following the end of each fiscal quarter, the earlier of (a) the date
which is 45 days after the end of such fiscal quarter, in the case of the
first
three fiscal quarters of the Borrower in each fiscal year, and the date which
is 90 days after the end of such fiscal quarter, in the case of the final
fiscal quarter of the Borrower in each fiscal year, and (b) the date which
is
two Business Days after Borrower has delivered to Administrative Agent the
financial statements of Borrower with respect to such fiscal quarter as
required by Section 5.01(a) or 5.01(b), as applicable, of this Agreement.


     “Administrative Agent” means
JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders under the Credit Documents, together with
its successors and assigns in such capacity.


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


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


     “Agreement” has the meaning
assigned to such term in the opening paragraph
hereof.


 






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     “Alternate
Base Rate” means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


     “Applicable
Percentage” means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender’s Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.


     “Applicable
Rate” means, for any day, with respect to any ABR Loan or
Eurodollar Loan, or with respect to the facility fees payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption
“ABR Spread”, “Eurodollar Spread” or “Facility Fee
Rate”, as the case may be,
based upon the Debt/EBITDA Ratio applicable on such date (calculated in
accordance with Section 6.08(a)), as follows:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Level:	 	Debt/EBITDA
Ratio:	 	ABR
Spread	 	Eurodollar
Spread	 	Facility Fee
Rate
	
	 	
	 	
	 	
	 	

	IV
	 	Greater than or
equal to 2.00 to
1.00
	 	 	0.50	%	 	 	1.75	%	 	 	0.50	%
	III
	 	Less than 2.00 to 1.00, but
greater than or equal to
1.50 to 1.00
	 	 	0.25	%	 	 	1.50	%	 	 	0.35	%
	II
	 	Less than 1.50 to
1.00, but
greater than or equal to
1.00 to 1.00
	 	 	0.00	%	 	 	1.25	%	 	 	0.25	%
	I
	 	Less than 1.00 to
1.00	 	 	0.00	%	 	 	1.00	%	 	 	0.20	%



On the Effective Date and continuing through and
including the day immediately
preceding the first Adjustment Date occurring after the Effective Date, the ABR
Spread shall be 0.00%, the Eurodollar Spread shall be 1.00% and the Facility
Fee Rate shall be 0.30% per annum, and for each period thereafter beginning on
an Adjustment Date and ending on the day immediately preceding the next
succeeding Adjustment Date, the Applicable Rate shall be as set forth opposite
the applicable Debt/EBITDA Ratio in the table above, as determined at the end
of the most recently ended fiscal quarter prior to the applicable Adjustment
Date in accordance with the definition of “Adjustment Date”.
Notwithstanding
the foregoing, (a) if on any day after the first Adjustment Date occurring
after the Effective Date the Facility Usage is less than 25% of the amount of
the total Commitments, then for each day that the Facility Usage is less than
25% of the amount of the total commitments, the Facility Fee Rate will be
increased 0.10% and (b) if the Borrower fails to furnish to the
Administrative
Agent the financial statements of the Borrower and related certificate of a
Financial Officer of the Borrower with respect to any fiscal quarter


 






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Page 3


within the time periods specified in
Section 5.01(a) or 5.01(b), as applicable,
then the Applicable Rate prescribed in Level IV above shall apply as of the
date such financial statements were required to be delivered until the day
immediately preceding the date such financial statements and compliance
certificate are so delivered.


     “Approved
Fund” has the meaning assigned to such term in Section 9.04.


     “Assignment
and Assumption” means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in
the
form of Exhibit A or any other form approved by the Administrative Agent.


     “Availability
Period” means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.


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


     “Borrower” has the meaning
assigned to such term in the opening paragraph
hereof.


     “Borrowing” means Revolving
Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.


     “Borrowing
Request” means a request by the Borrower for a Borrowing in
accordance with Section 2.03.


     “Business
Day” means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City or Dallas, Texas are authorized or
required by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term “Business Day” shall also exclude any day on
which
banks are not open for dealings in dollar deposits in the London interbank
market.


     “Capital
Lease” means, with respect to any Person which is the lessee
thereunder, any lease or charter of property, real or personal, which would, in
accordance with GAAP, be recorded as an asset under a capital lease on a
balance sheet of such Person.


     “Capital Lease
Obligations” means, with respect to any Person on any date,
the amount which would, in accordance with GAAP, be recorded as an obligation
under a Capital Lease on a balance sheet of such Person as lessee under such
Capital Lease as at such date.


     “Change in
Control” means (a) any Person or group (within the meaning of
the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof), other than
Perot Family Members, acquires ownership, directly or indirectly, beneficially
or of record of, or possesses the ability to exercise voting power, whether by
contract or otherwise, with respect to, Equity Interests representing more than
50% of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of the Borrower, or (b) occupation of a
majority
of the seats (other than vacant seats) on the board


 






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of directors of the Borrower by Persons who were
neither (i) nominated by
the board of directors of the Borrower nor (ii) appointed by directors so
nominated.


     “Change in
Law” means (a) the adoption of any law, rule or regulation
after the date of this Agreement, (b) any change in any law, rule or
regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or the
Issuing
Bank (or, for purposes of Section 2.15(b), by any lending office of such
Lender
or by such Lender’s or the Issuing Bank’s holding company, if any)
with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.


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


     “Commitment” means, with
respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Revolving Credit Exposure hereunder, as such
commitment
may be (a) reduced or increased from time to time pursuant to
Section 2.09 and
(b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each
Lender’s
Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption
pursuant to which such Lender shall have assumed its Commitment, as applicable.
The initial aggregate amount of the Lenders’ Commitments is $100,000,000.


     “Consolidated
EBIT” means, for any period, on a consolidated basis for the
Borrower and its Subsidiaries, the sum of the amounts for such period, without
duplication, of: (a) Consolidated Net Income, plus (b) charges
against income
for foreign, federal, state, and local taxes, to the extent deducted in
computing Consolidated Net Income, plus (c) Consolidated Interest
Expense, plus
(d) extraordinary or non-recurring non-cash losses to the extent deducted
in
computing Consolidated Net Income, minus (e) extraordinary or
non-recurring
non-cash gains to the extent included in computing Consolidated Net Income,
calculated on a rolling four-quarter basis for covenant compliance purposes.


     “Consolidated
EBITDA” means, for any period, on a consolidated basis for
the Borrower and its Subsidiaries, the sum of the amounts for such period,
without duplication, of: (a) Consolidated Net Income, plus
(b) charges against
income for foreign, federal, state, and local taxes, to the extent deducted in
computing Consolidated Net Income, plus (c) Consolidated Interest
Expense, plus
(d) depreciation expense, to the extent deducted in computing Consolidated
Net
Income, plus (e) amortization expense, including, without
limitation,
amortization of goodwill, other intangible assets and Transaction Expenses, to
the extent deducted in computing Consolidated Net Income, plus (f)
extraordinary or non-recurring non-cash losses to the extent deducted in
computing Consolidated Net Income, minus (g) extraordinary or
non-recurring
non-cash gains to the extent included in computing Consolidated Net Income,
calculated on a rolling four-quarter basis for covenant compliance purposes;
provided that if (i) the Synthetic Lease Documents are hereafter amended or
(ii) the obligations of the Borrower under the Synthetic Lease Documents
are
hereafter refinanced with the proceeds of a replacement credit facility, in
each case to modify, in a manner reasonably satisfactory to the Administrative
Agent, the definition of “Consolidated EBITDA” set forth therein to
include, on
a


 






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Page 5


pro forma basis, the results of operations of
acquired entities or
businesses, this definition shall upon the written request of the Borrower be
modified in a substantially similar manner, such modification to be effected by
an amendment that is executed by the Borrower and the Administrative Agent,
each of the Lenders hereby consenting to such amendment in such manner.


     “Consolidated
Funded Indebtedness” means, at any time, the aggregate
dollar amount of Consolidated Indebtedness which has actually been funded and
is outstanding at such time (including the then-outstanding “Property
Balance”
under the Synthetic Lease Documents (as such term is defined in the Synthetic
Lease as in effect on the date hereof, subject to the last sentence of Section
1.03) and any similar amount under any other synthetic lease or similar finance
lease hereafter entered into by the Borrower or any of its Subsidiaries),
whether or not such amount is due or payable at such time, calculated for
covenant compliance purposes in a manner consistent with past practice with
respect to the Synthetic Lease Documents; provided that if “Consolidated
Funded
Indebtedness” under the Synthetic Lease Documents is at any time hereafter
calculated in a manner that differs from past practice with respect thereto and
with a more restrictive result, Consolidated Funded Indebtedness hereunder
shall be calculated in a similar manner and with a correspondingly more
restrictive result.


     “Consolidated
Indebtedness” means, at any time, the Debt of the Borrower
and its Subsidiaries calculated on a consolidated basis as of such time.


     “Consolidated
Interest Expense” means, with reference to any period, on a
consolidated basis for the Borrower and its Subsidiaries, the interest expense
(including all payments of Basic Rent (as defined in the Synthetic Lease as in
effect on the date hereof, subject to the last sentence of Section 1.03)
and
the interest component (determined in accordance with GAAP) of Capital Leases)
for such period, calculated on a rolling four-quarter basis for covenant
compliance purposes.


     “Consolidated
Net Income” means, with reference to any period, the net
income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period in accordance with GAAP.


     “Consolidated
Net Worth” means, at any time (a) the total assets of the
Borrower and its Subsidiaries which would be shown as assets on a consolidated
balance sheet of the Borrower and its Subsidiaries as of such time prepared in
accordance with GAAP, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries, minus
(b)
the total liabilities of the Borrower and its Subsidiaries which would be shown
as liabilities on a consolidated balance sheet of the Borrower and its
Subsidiaries as of such time prepared in accordance with GAAP.


     “Consolidated
Subsidiaries” means, with respect to the Borrower on any
date, all Subsidiaries and other entities whose accounts are consolidated with
the accounts of the Borrower as of such date in accordance with the principles
of consolidation reflected in the audited financial statements of the Borrower
as of such date then most recently delivered to Lenders.


 






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Page 6


     “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.


     “Co-Syndication Agents” means
KeyBank National Association and SunTrust
Bank, in their capacity as co-syndication agents under the Credit Documents,
together with their respective successors and assigns in such capacity.


     “Credit
Documents” means, collectively, this Agreement, the Guaranty
Agreement, the Pledge Agreement and each other agreement, instrument or
document executed at any time in connection with any of the foregoing, as each
such Credit Document may be amended, restated, supplemented or otherwise
modified from time to time.


     “Credit
Parties” means, collectively, the Borrower, each Guarantor, each
Pledgor and each Pledged Foreign Subsidiary.


     “Debt”
means, with respect to any Person, without duplication, (a)
indebtedness for borrowed money (including, without limitation, indebtedness
evidenced by debt securities), (b) obligations to pay the deferred purchase
price of property or services, except trade accounts payable in the ordinary
course of business, (c) Capitalized Lease Obligations, in the case of each
of
the foregoing clauses (a) through (c), for which such Person or any of its
Consolidated Subsidiaries shall be liable as a primary obligor or under any
guaranty of any such indebtedness or other such obligations of an entity not
included in such Person’s consolidated financial statements, and
(d) any such
indebtedness or other such obligations of any entity not included in such
Person’s consolidated financial statements secured in any manner by any
lien
upon any assets of such Person or any of its Consolidated Subsidiaries to the
extent, in the case of indebtedness (other than under the Synthetic Lease
Documents, for which “Debt” shall include the “Property
Balance”, as such term
is defined in the Synthetic Lease as in effect on the date hereof, subject to
the last sentence of Section 1.03) for which recourse to such Person is
limited
to such assets, of the book value of the assets subject to the lien; provided
that for purposes of the computation of any Debt there shall be no duplication
of any item of primary or other indebtedness or other obligation referred to
hereinabove, whether such item reflects the indebtedness or other obligation of
such Person or any of its Consolidated Subsidiaries or of any entity not
included in such Person’s consolidated financial statements.


     “Debt/EBITDA
Ratio” has the meaning assigned to such term in Section
6.08(a).


     “Default”
means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.


     “Disclosed
Matters” means the matters disclosed in Schedule 1.01.


     “Documentation
Agent” means Wells Fargo Bank, National Association, in its
capacity as documentation agent under the Credit Documents, together with its
successors and assigns in such capacity.


     “dollars”
or “$” refers to lawful money of the United States of America.


 






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     “Domestic
Subsidiary” means a direct or indirect Subsidiary of the
Borrower organized under the laws of any State, the District of Columbia, the
United States or any other political subdivision thereof.


     “Effective
Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with
Section 9.02).


     “Eligible
Equity Interests” means, with respect to any First-Tier Foreign
Subsidiary, all shares of capital stock or other Equity Interests of whatever
class of such First-Tier Foreign Subsidiary, in each case together with any
certificates evidencing the same, excluding, however, all shares of capital
stock or other Equity Interests of such First-Tier Foreign Subsidiary which
represent in excess of 65% of the combined voting power of all classes of
capital stock or other Equity Interests of such First-Tier Foreign Subsidiary;
provided, however, that if following a change in the relevant sections of the
Code or the regulations, rules, rulings, notices or other official
pronouncements issued or promulgated thereunder which would change the maximum
percentage of the total combined voting power of all classes of capital stock
or other Equity Interests of any such First-Tier Foreign Subsidiary entitled to
vote that may be pledged without causing (a) the undistributed earnings of
such
First-Tier Foreign Subsidiary as determined for United States federal income
tax purposes to be treated as a deemed dividend to, or investment in United
States property of, the owner of such capital stock or other Equity Interests
or (b) other material adverse consequences to the Borrower and its
Subsidiaries, then the 65% limitation set forth above shall be changed to 1%
less than such maximum percentage.


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


     “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
Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire any
such equity interest.


     “ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended from time to time.


 






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


     “ERISA
Event” means (a) any “reportable event”, as defined in
Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the
existence
with respect to any Plan of an “accumulated funding deficiency” (as
defined in
Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of
any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a
plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.


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


     “Event of
Default” has the meaning assigned to such term in Article VII.


     “Excluded
Taxes” means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or
franchise
taxes imposed by the United States of America, or by the jurisdiction under the
laws of which such recipient is organized or in which its principal office is
located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.19(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a
new lending office) or is attributable to such Foreign Lender’s failure to
comply with Section 2.17(e), except to the extent that such Foreign Lender
(or
its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.17(a).


     “Facility
Usage” means, at the time in question, the sum of the Revolving
Credit Exposure of all Lenders hereunder.


 






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


     “Financial
Officer” means the chief financial officer, principal
accounting officer, vice president of finance, treasurer or controller of the
Borrower.


     “First-Tier
Foreign Subsidiary” means a Foreign Subsidiary that is a
direct Subsidiary of either the Borrower or a Domestic Subsidiary.


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


     “Foreign
Subsidiary” means a direct or indirect Subsidiary of the Borrower
that is not a Domestic Subsidiary.


     “GAAP”
means United States generally accepted accounting principles
(including principles of consolidation), in effect from time to time.


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


     “Guarantors” means the
Subsidiaries from time to time parties to the
Guaranty Agreement.


     “Guaranty
Agreement” the Guaranty Agreement, dated as of the date of this
Agreement and executed and delivered by the Guarantors in favor of the
Administrative Agent and each of the Lenders, substantially in the form of
Exhibit B, as amended, restated, supplemented or otherwise modified from
time
to time (including, without limitation, by any joinder thereto executed and
delivered after the date of this Agreement pursuant to Section 5.11 in
order to
effect the joinder therein of any additional Subsidiary).


     “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.


 






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     “Highest
Lawful Rate” means, with respect to the Administrative Agent or
any Lender, the maximum nonusurious interest rate, if any, that at any time or
from time to time may be contracted for, taken, reserved, charged or received
with respect to the Loans or on other amounts, if any, due to the
Administrative Agent or such Lender pursuant to this Agreement or any other
Credit Document, under laws applicable to the Administrative Agent or such
Lender which are presently in effect, or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow. To the
extent required by applicable law in determining the Highest Lawful Rate with
respect to the Administrative Agent or any Lender as of any date, there shall
be taken into account the aggregate amount of all payments and charges
theretofore charged, reserved or received by the Administrative Agent or such
Lender hereunder or under the other Credit Documents which constitute or are
deemed to constitute interest under applicable law.


     “Indemnified
Taxes” means Taxes other than Excluded Taxes.


     “Information
Memorandum” means the Confidential Information Memorandum
dated December 2003 relating to the Borrower and the Transactions.


     “Interest
Election Request” means a request by the Borrower to convert or
continue a Borrowing in accordance with Section 2.08.


     “Interest
Payment Date” means (a) with respect to any ABR Loan, the last
day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each
day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period.


     “Interest
Period” means, with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided that (a) if any Interest
Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (b) any Interest
Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.


     “Issuing
Bank” means JPMorgan Chase Bank, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in
Section 2.06(i). The Issuing Bank may, in its discretion, arrange for one
or
more Letters of Credit to be issued by Affiliates of the Issuing Bank, in which
case the term “Issuing Bank” shall include any such Affiliate with
respect to
Letters of Credit issued by such Affiliate.


 






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


     “LC
Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the
aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender at any time
shall be its Applicable Percentage of the total LC Exposure at such time.


     “Lenders”
means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to Section 2.09 or pursuant
to
an Assignment and Assumption, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption.


     “Letter of
Credit” means any letter of credit issued pursuant to this
Agreement.


     “LIBO
Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate (rounded upwards, if necessary, to the nearest 1/100
of 1%) appearing on Page 3750 of the Bridge Telerate Service (or on any
successor or substitute page of such Service, or any successor to or substitute
for such Service, providing rate quotations comparable to those currently
provided on such page of such Service, as determined by the Administrative
Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of
such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such
Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits
of $5,000,000 and for a maturity comparable to such Interest Period are offered
by the principal London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.


     “Lien”
means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, and (b) the interest of a vendor or a lessor under any
conditional sale agreement, Capital Lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset.


     “Loans”
means the loans made by the Lenders to the Borrower pursuant to
this Agreement.


     “Material
Adverse Effect” means (a) a material adverse effect on the
business, assets, liabilities, operations or condition, financial or otherwise,
of (i) the Borrower or (ii) the Borrower and its Subsidiaries, taken
as a
whole, (b) a material impairment of the Borrower’s or any of its
Subsidiaries’
ability to perform any of their respective obligations under the Credit
Documents on a timely basis, or (c) a material impairment of the validity
or
enforceability of the rights of or


 






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the benefits available to the Administrative
Agent and the Lenders under
the Credit Documents or otherwise.


     “Material
Indebtedness” means Debt (other than the Loans and Letters of
Credit) of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $10,000,000.


     “Maturity
Date” means January 19, 2007.


     “Maximum
Aggregate Commitment” means $150,000,000.


     “Minimum
Recourse Coverage” has the meaning assigned to such term in
Section 5.11.


     “Moody’s” means
Moody’s Investors Service, Inc.


     “Multiemployer
Plan” means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.


     “Non-Operating
Income/Expense” has the meaning assigned to such term in
Section 5.11.


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


     “Participant” has the meaning
assigned to such term in Section 9.04.


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


     “Permitted
Encumbrances” means:



		
	 	     (a)    Liens imposed
by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;




		
	 	     (b)    carriers’
, warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other like Liens (provided such Liens do not
(i) secure
indebtedness for borrowed money or Capitalized Lease Obligations or (ii)
also encumber unrelated assets of the Borrower or any Subsidiary),
arising in the ordinary course of business and securing obligations that
are not overdue by more than 30 days or are being contested in compliance
with Section 5.04;




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



 






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




		
	 	     (e)    judgment liens
in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and




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



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


     “Perot Family
Member” means a member of the family of Ross Perot (an
individual resident of the State of Texas), and any direct descendents thereof,
or by or through marriage, or any Affiliate of any such Person, The Perot
Foundation and any other charitable foundation or organization established by a
Perot Family Member, and any trust or estate the settlor or the primarily
beneficiaries of which consist of one or more of such Persons.


     “Person”
means any individual, corporation, partnership, joint venture,
limited liability company, trust, estate, unincorporated organization or
Governmental Authority.


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


     “Pledge
Agreement” means a Pledge Agreement, to be dated as of the first
date one or more Foreign Subsidiaries become Pledged Foreign Subsidiaries
pursuant to Section 5.11, and to be executed and delivered by the Borrower
and
the other Pledgors in favor of the Administrative Agent, substantially in the
form of Exhibit C, as amended, restated, supplemented or otherwise modified
from time to time (including, without limitation, by any supplement thereto
executed and delivered after the date of this Agreement pursuant to Section
5.11 in order (a) to effect the joinder of any additional Subsidiary or
(b) to
subject thereto any additional Equity Interests).


     “Pledged
Foreign Subsidiary” means a Foreign Subsidiary, all Eligible
Equity Interests of which have been pledged to the Administrative Agent under
the Pledge Agreement.


     “Pledgors” means the Borrower
and each of the Subsidiaries from time to
time parties to the Pledge Agreement.


     “Prime
Rate” means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank as its prime rate in effect at its
principal office in New York City; each


 






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change in the Prime Rate shall be effective from
and including the date
such change is publicly announced as being effective.


     “Principal
Debt” means, on any date of determination, the aggregate unpaid
principal balance of all Revolving Loans, plus (without duplication) the
aggregate unpaid reimbursement obligations of the Borrower in respect of LC
Disbursements.


     “Pro Rata
Part” means, for any Lender, (a) the proportion which the
Principal Debt owed to such Lender bears to the Principal Debt owed to all
Lenders at the time in question, and (b) if no Principal Debt is
outstanding,
then the proportion that such Lender’s Commitment bears to the total
Commitments of all Lenders.


     “Purchasing
Lender” has the meaning assigned to such term in Section
2.09(d).


     “Register” has the meaning
assigned to such term in Section 9.04.


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


     “Required
Lenders” means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.


     “Responsible
Officer” means the Chief Executive Officer, the President,
the Chief Operating Officer, the General Counsel or any Financial Officer of
the Borrower.


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


     “Revolving
Loan” means a Loan made pursuant to Section 2.03.


     “S&P” means Standard
& Poor’s Ratings Group, a division of The McGraw-Hill
Companies, Inc.


     “Solvent”
means, with respect to any Person as of any date of
determination, that on such date (a) the fair value of the property of such
Person (both at fair valuation and at present fair saleable value) is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person, (b) the present fair saleable value of the
assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person is able to realize upon its assets and pay its
debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (d) such Person does not intend
to,
and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to pay as such debts and liabilities mature and
(e) such
Person is not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person’s property would
constitute
unreasonably small capital after giving due consideration to current and
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requirements and current and anticipated future
business conduct and the
prevailing practice in the industry in which such Person is engaged. In
computing the amount of contingent liabilities at any time, such liabilities
shall be computed at the amount which, in light of the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


     “Statutory
Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.


     “Subsidiary” means, with
respect to any Person, any corporation,
association or other business entity in which said Person or one or more
Subsidiaries of said Person owns or controls, directly or indirectly, Equity
Interests representing more than fifty percent (50%) of the ordinary voting
power. As used herein with respect to the Borrower, the term
“Subsidiary”
shall include all direct and indirect Subsidiaries of the Borrower. Unless the
context otherwise requires, “Subsidiary” shall refer to a Subsidiary
of the
Borrower.


     “Swap
Agreement” means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.


     “Synthetic
Lease” means that certain Master Lease Agreement and Mortgage
and Deed of Trust dated as of June 22, 2000 between Perot Systems Business
Trust No. 2000-1 and PSC Management Limited Partnership.


     “Synthetic
Lease Documents” means, collectively, the documents designated
as “Operative Documents” pursuant to the Synthetic Lease (as in effect
on the
date hereof, subject to the last sentence of Section 1.03).


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


 






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     “Transaction
Expenses” means all costs and expenses incurred in connection
with the preparation, execution and delivery of the Credit Documents and the
consummation of the transactions contemplated thereby.


     “Transactions” means the
execution, delivery and performance by (a) the
Borrower of this Agreement, including without limitation the borrowing of
Revolving Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder, and (b) the Borrower, the Guarantors and the Pledgors, as
applicable, of the other Credit Documents to which each is a party.


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


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





     SECTION 1.02.
Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Type (e.g., a
“Eurodollar
Loan”). Borrowings also may be classified and referred to by Type (e.g., a
“Eurodollar Borrowing”).





     SECTION 1.03. Terms
Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes”
and “including”
shall be deemed to be followed by the phrase “without limitation”. The
word
“will” shall be construed to have the same meaning and effect as the
word
“shall”. Unless the context requires otherwise (a) any definition
of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include
such Person’s successors and assigns, (c) the words
“herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer
to this
Agreement in its entirety and not to any particular provision hereof,
(d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property”
shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights. All references herein to “the knowledge of the
Borrower” or
words of similar import shall mean the actual knowledge of any Responsible
Officer of the Borrower. If the meaning of any term defined herein by
reference to the meaning given in any Synthetic Lease Document is hereafter
modified in such Synthetic Lease Document, upon written request by the
Borrower, and subject to the written approval of the Administrative Agent and
the Required Lenders, such approval to not be unreasonably
withheld, such term will be given the meaning given in such Synthetic Lease
Document as so modified.


 






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     SECTION 1.04.
Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that if the Synthetic Lease Documents are hereafter amended, in a manner
reasonably satisfactory to the Administrative Agent, to provide that upon any
change in GAAP that would affect the computation of any financial ratio or
requirement set forth therein, (a) the parties thereunder shall negotiate
in
good faith to amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP, and (b) until so amended,
(i) such
ratio or requirement under the Synthetic Lease Documents shall continue to be
computed in accordance with GAAP prior to such change therein and (ii) the
Borrower shall provide financial statements and other documents required under
the Synthetic Lease Documents setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect
to such change in GAAP, then in such event this Section 1.04 shall upon the
written request of the Borrower be modified in a substantially similar manner,
such modification to be effected by an amendment that is executed in accordance
with Section 9.02 by the Borrower and the Administrative Agent, each of the
Lenders hereby consenting to such amendment in such manner.





ARTICLE II.



The Credits






     SECTION 2.01.
Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in an aggregate principal amount that will
not result in (a) such Lender’s Revolving Credit Exposure exceeding
such
Lender’s Commitment or (b) the sum of the total Revolving Credit
Exposures
exceeding the total Commitments. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.





     SECTION 2.02. Loans
and Borrowings.


     (a)    Each Revolving
Loan shall be made as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Revolving Loan required to
be made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Revolving Loans as
required.


     (b)    Subject to
Section 2.14, each Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request in accordance
herewith. Each Lender at its option (but subject to Section 2.19) may make
any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.


     (c)    At the
commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $100,000 and not less


 






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than $1,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be in an aggregate amount that is an
integral multiple of $100,000 and not less than $2,000,000; provided that an
ABR Borrowing may be in an aggregate amount that is equal to the entire unused
balance of the total Commitments or that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.06(e).
Borrowings of more than one Type may be outstanding at the same time; provided
that there shall not at any time be more than a total of eight Eurodollar
Borrowings outstanding.


     (d)    Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.





     SECTION 2.03.
Requests for Borrowings. To request a Borrowing, the Borrower
shall notify the Administrative Agent of such request by telephone (a) in
the
case of a Eurodollar Borrowing, not later than 12:00 noon, New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the
case of an ABR Borrowing, not later than 12:00 noon, New York City time, on the
same Business Day of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Borrowing Request in a
form approved by the Administrative Agent and signed by the Borrower. Each
such telephonic and written Borrowing Request shall specify the following
information in compliance with Section 2.02:



		
	 	     (i)    the aggregate
amount of the requested Borrowing;
	 
	 	     (ii)    the date of
such Borrowing, which shall be a Business Day;
	 
	 	     (iii)    whether such
Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
	 
	 	     (iv)    in the case
of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period”; and
	 
	 	     (v)    the location
and number of the Borrower’s account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.07.



If no election as to the Type of Borrowing is
specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month’s duration.
Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender’s Loan to be made as part of the requested Borrowing.





     SECTION 2.04.
Reserved.





     SECTION 2.05.
Reserved.


 






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     SECTION 2.06.
Letters of Credit.


     (a)    General.
Subject to the terms and conditions set forth herein, the
Borrower may request the issuance of Letters of Credit for its own account or
the account of any of its Subsidiaries, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower
to, or entered into by the Borrower with, the Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.


     (b)    Notice of
Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount
of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the Borrower also shall
submit a letter of credit application on the Issuing Bank’s standard form
in
connection with any request for a Letter of Credit; provided that no provision
in such application shall be deemed effective to the extent such provision
contains, provides for, or requires covenants, representations, warranties,
Liens, indemnities, reimbursements of costs or expenses, events of defaults,
remedies or standards of care or to the extent such provision conflicts or is
inconsistent with this Agreement. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension
(i) the LC Exposure shall not exceed $25,000,000 and (ii) the sum of
the total
Revolving Credit Exposures shall not exceed the total Commitments.


     (c)    Expiration
Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the
date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the
date
that is five Business Days prior to the Maturity Date (or a date that is no
more than 90 days after the Maturity Date if the Borrower has fully cash
collateralized its obligations on or before the fifth Business Day prior to the
Maturity Date in respect of such Letter of Credit in accordance with the
provisions of Section 2.06(j) and otherwise on terms reasonably acceptable
to
the Administrative Agent and the Issuing Bank).


     (d) 
    Participations. By the issuance of a Letter of Credit
(or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender’s


 






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Applicable Percentage of the aggregate amount
available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender’s
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of
this
Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.


     (e)    Reimbursement.
If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on such date,
or,
if such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the
Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that,
if such LC Disbursement is not less than $1,000,000, the Borrower may, subject
to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 that such payment be financed with an ABR Borrowing in an
equivalent amount and, to the extent so financed, the Borrower’s obligation
to
make such payment shall be discharged and replaced by the resulting ABR
Borrowing. If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Lender of the applicable LC
Disbursement, the payment then due from the Borrower in respect thereof and
such Lender’s Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.07 with respect to Loans made by such
Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders
and the Issuing Bank as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Loans as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


     (f)    Obligations
Absolute. The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be
absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any


 






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Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft
or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter
of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the Borrower’s
obligations
hereunder, provided in each case that the Issuing Bank has exercised care in
accordance with the standard set forth in the penultimate sentence of this
paragraph (f). Neither the Administrative Agent, the Lenders nor the Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to
any Letter of Credit (including any document required to make a drawing
thereunder), any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank; provided that the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
the Issuing Bank’s failure to exercise care when determining whether drafts
and
other documents presented under a Letter of Credit comply with the terms
thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.


     (g)    Disbursement
Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.


     (h)    Interim
Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans; provided that if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph
(e) of
this Section, then Section 2.13(c) shall apply. Interest accrued pursuant
to
this


 






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paragraph shall be for the account of the Issuing
Bank, except that
interest accrued on and after the date of payment by any Lender pursuant to
paragraph (e) of this Section to reimburse the Issuing Bank shall be for
the
account of such Lender to the extent of such payment.


     (i)    Replacement of
the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of the Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement,
(i) the successor Issuing Bank shall have all the rights and obligations of
the
Issuing Bank under this Agreement with respect to Letters of Credit to be
issued thereafter and (ii) references herein to the term “Issuing
Bank” shall
be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require.
After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to
issue additional Letters of Credit.


     (j)    Cash
Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent demanding, at the request or with the consent of the
Required Lenders, the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in
clause (g) or (h) of Article VII. Such deposit shall be held by
the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such
deposits, if any, which investments shall be made at the option and sole
discretion of the Administrative Agent in short-term obligations issued or
guaranteed by the United States or similar short-term conservative liquid
investments and at the Borrower’s risk and expense, such deposits shall not
bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure
representing at least 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.


 






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     SECTION 2.07.
Funding of Borrowings.


     (a)    Each Lender
shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 2:00
p.m., New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided that ABR Loans made to
finance the reimbursement of an LC Disbursement as provided in
Section 2.06(e)
shall be remitted by the Administrative Agent to the Issuing Bank.


     (b)    Unless the
Administrative Agent shall have received prior notice from
a Lender that such Lender will not make available to the Administrative Agent
such Lender’s share of any Borrowing, the Administrative Agent may assume
that
such Lender has made such share available on the proposed date of such
Borrowing in accordance with paragraph (a) of this Section and may, in
reliance
upon such assumption, make available to the Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the
case
of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to the applicable Borrowing. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender’s Loan included in such Borrowing.





     SECTION 2.08.
Interest Elections.


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


     (b)    To make an
election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower
were
requesting a Borrowing of the Type resulting from such election to be made on
the effective date of such election. Each such telephonic Interest Election
Request shall be irrevocable and shall be confirmed promptly by hand delivery
or telecopy to the Administrative Agent of a written Interest Election Request
in a form approved by the Administrative Agent and signed by the Borrower.


 






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     (c)    Each
telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:



		
	 	     (i)    the Borrowing
to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);




		
	 	     (ii)    the effective
date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;




		
	 	     (iii)   whether the
resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and




		
	 	     (iv)    if the
resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term “Interest Period”.



If any such Interest Election Request requests a
Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.


     (d)    Promptly
following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender’s portion of each resulting Borrowing.


     (e)    If the
Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Borrowing prior to the end of the Interest Period
applicable thereto, then, unless such Borrowing is repaid as provided herein,
at the end of such Interest Period such Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be
converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.





     SECTION 2.09.
Termination, Reduction and Increase of Commitments.


     (a)    Unless
previously terminated, the Commitments shall terminate on the
Maturity Date.


     (b)    The Borrower
may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall
be
in an amount that is an integral multiple of $5,000,000 and not less than
$10,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments
if, after giving effect to any concurrent prepayment of the Loans in accordance
with Section 2.11, the sum of the Revolving Credit Exposures would exceed
the
total Commitments.


 






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     (c)    The Borrower
shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower
pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.


     (d)    So long as no
Default or Event of Default exists or would arise as a
result thereof, the Borrower may from time to time request any one or more
Lenders to increase their respective Commitments or request other financial
institutions first approved by Administrative Agent (such approval not to be
unreasonably withheld or delayed) to agree to a Commitment (in an aggregate
amount of not less than $10,000,000 or such lesser amount as may be available
under the Maximum Aggregate Commitment), so that the total Commitments may be
increased to no more than the Maximum Aggregate Commitment. Any such increase
of Commitments must be effected by an amendment that is executed in accordance
with Section 9.02 by the Borrower, the
Administrative Agent, and the one or more Lenders who have agreed to
increase their Commitments or by new Lenders who have agreed to new
Commitments. No Lender is obligated to increase its Commitment under any
circumstances, and no Lender’s Commitment may be increased except by its
execution of an amendment to this Agreement in accordance with
Section 9.02.
Each new Lender providing any such additional Commitment shall be a
“Lender”
hereunder, entitled to the rights and benefits, and subject to the duties, of a
Lender under the Credit Documents. In such case, each Lender’s Applicable
Percentage shall be recalculated to reflect the new proportionate share of the
revised total Commitments, and the Lender responsible for the additional
Commitment (the “Purchasing Lender”) shall, immediately upon receiving
notice
from Administrative Agent, pay to each Lender an amount equal to its Pro Rata
Part of the Principal Debt outstanding as of such date. All such payments with
respect to the Principal Debt shall reduce the outstanding Principal Debt owed
to each Lender receiving such payments and shall represent Loans hereunder to
Borrower by the Purchasing Lender. The Purchasing Lender shall be entitled to
share ratably in interest accruing on the balances purchased, at the rates
provided herein for such balances, from and after the date of purchase. All
new Borrowings hereunder occurring after an increase of the Commitments shall
be funded in accordance with the Lenders’ revised Applicable Percentages.





     SECTION 2.10.
Repayment of Loans; Evidence of Debt.


     (a)    The Borrower
hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date.


     (b)    Each Lender
shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan


 






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made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.


     (c)  The
Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan
made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the
Administrative
Agent hereunder for the account of the Lenders and each Lender’s share
thereof.


     (d)    The entries
made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.


     (e)    Any Lender may
request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent.
Thereafter, the Loans evidenced by such promissory note and interest thereon
shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note,
to such payee and its registered assigns).





     SECTION 2.11.
Prepayment of Loans.


     (a)    Subject to any
breakage funding costs payable pursuant to Section
2.16, the Borrower shall have the right at any time and from time to time to
prepay any Borrowing in whole or in part, subject to prior notice in accordance
with paragraph (b) of this Section without premium or penalty.


     (b)    The Borrower
shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 12:00 noon, New York City
time, three Business Days before the date of prepayment or (ii) in the case
of
prepayment of an ABR Borrowing, not later than 12:00 noon, New York City time,
on the date of prepayment. Each such notice shall be irrevocable and shall
specify the prepayment date, which must be a Business Day, and the principal
amount of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.09, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.09. Promptly following receipt of any such notice
relating to a Borrowing, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in an
amount that would be permitted in the case of an advance of a Borrowing of the
same Type as provided in Section 2.02. Each prepayment of a Borrowing shall
be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section
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     SECTION 2.12. Fees.


     (a)    The Borrower
agrees to pay to the Administrative Agent for the account
of each Lender a facility fee, which shall accrue at the Applicable Rate on the
daily amount of the unused Commitment of such Lender during the period from and
including the Effective Date to but excluding the date on which such Commitment
terminates; provided that, if such Lender continues to have any Revolving
Credit Exposure after its Commitment terminates, then such facility fee shall
continue to accrue on the daily amount of such Lender’s Revolving Credit
Exposure from and including the date on which its Commitment terminates to but
excluding the date on which such Lender ceases to have any Revolving Credit
Exposure. Accrued facility fees shall be payable in arrears on the last day of
March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the
Effective Date; provided that any facility fees accruing after the date on
which the Commitments terminate shall be payable on demand. All facility fees
shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).


     (b)    The Borrower
agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations
in Letters of Credit, which shall accrue at the same Applicable Rate used to
determine the interest rate applicable to Eurodollar Loans on the average daily
amount of such Lender’s LC Exposure (excluding any portion thereof
attributable
to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such
Lender’s
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue
at
the rate of 0.125% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Commitments and the date on which there
ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees
with
respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the
Commitments terminate, and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to
the Issuing Bank pursuant to this paragraph shall be payable within 10 days
after demand. All participation fees and fronting fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number
of
days elapsed (including the first day but excluding the last day).


     (c)    The Borrower
agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon in
writing between the Borrower and the Administrative Agent.


     (d)    All fees
payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
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to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.





     SECTION 2.13.
Interest.


     (a)    The Loans
comprising each ABR Borrowing shall bear interest at the
Alternate Base Rate plus the Applicable Rate, but not to exceed the Highest
Lawful Rate.


     (b)    The Loans
comprising each Eurodollar Borrowing shall bear interest at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate, but not to exceed the Highest Lawful Rate.


     (c)    Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated
maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to
(i) in
the case of overdue principal of any Loan, 2.0% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2.0% plus the rate applicable to
ABR
Loans as provided in paragraph (a) of this Section, but not to exceed the
Highest Lawful Rate.


     (d)    Accrued
interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant
to
paragraph (c) of this Section shall be payable on demand, (ii) in the
event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest on
such Loan shall be payable on the effective date of such conversion.


     (e)    All interest
hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and
in each
case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.





     SECTION 2.14.
Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:


     (a)    the
Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or


     (b)    the
Administrative Agent is advised by the Required Lenders that the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period
will not adequately and


 






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fairly reflect the cost to such Lenders (or
Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;


then the Administrative Agent shall give notice
thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.





     SECTION 2.15.
Increased Costs.


     (a)    If any Change
in Law shall:




		
	               (i)    impose, modify
or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank;
or
	 
	               (ii)    impose on any
Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;






excluding, in each case, Taxes (with respect to
which Section 2.17 shall
govern), and the result of any of the foregoing shall be to increase the cost
to such Lender of making or maintaining any Eurodollar Loan (or of maintaining
its obligation to make any such Loan) or to increase the cost to such Lender or
the Issuing Bank of participating in, issuing or maintaining any Letter of
Credit or to reduce the amount of any sum received or receivable by such Lender
or the Issuing Bank hereunder (whether of principal, interest or otherwise),
then the Borrower will pay to such Lender or the Issuing Bank, as the case may
be, such additional amount or amounts as will compensate such Lender or the
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.


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


 






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     (c)    A certificate
of a Lender or the Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or
(b) of
this Section shall be delivered to the Borrower. The Borrower shall pay such
Lender or the Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 days after receipt thereof.


     (d) 
    Failure or delay on the part of any Lender or the
Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender’s or the Issuing Bank’s right to demand such compensation;
provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank,
as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the Issuing
Bank’s
intention to claim
compensation therefor; provided, further, that if the Change in Law giving
rise to such increased costs or reductions is retroactive, then the 270-day
period referred to above shall be extended to include the period of retroactive
effect thereof.





     SECTION 2.16. Break
Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.11(b) and is revoked in accordance therewith), or
(d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.19, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (x)
the amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (y) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.





     SECTION 2.17.
Taxes.


     (a)    Any and all
payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after
making
all required deductions (including deductions applicable to additional sums
payable


 






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under this Section) the Administrative Agent,
Lender or Issuing Bank
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such
deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.


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


     (c)    The Borrower
shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the
full amount of any
Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or the Issuing
Bank, as the case may be, on or with respect to any payment by or on account of
any obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability shall be
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank.


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


     (e)    Any Foreign
Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under
this Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without
withholding or at a reduced rate.


     (f)    Upon written
request of the Borrower, the Administrative Agent,
the Issuing Bank and each Lender shall use commercially reasonable efforts to
make any filings
necessary to obtain any refund, deduction or credit of any Indemnified Taxes or
Other Taxes as to which
the Borrower has indemnified it or with respect to which the Borrower has paid
additional amounts pursuant to
this Section 2.17. If the Administrative Agent, the Issuing Bank or a
Lender determines that it has received a
refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with
respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay over such refund
to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under
this Section with respect to the Indemnified Taxes or Other Taxes giving rise to
such refund), net of all actual
out-of-pocket expenses of the Administrative Agent, the Issuing Bank or such
Lender and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund); provided, that the Borrower, upon the request of the
Administrative



 









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Agent, the Issuing Bank or such Lender, agrees to repay the amount paid
over to the Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent, the Issuing
Bank or such Lender in the event the Administrative Agent, the Issuing Bank or
such Lender is required to repay such refund to such Governmental Authority.
This Section shall not be construed to require the Administrative Agent, the
Issuing Bank or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower
or any other Person or to attempt to take any position to obtain a refund,
deduction or credit, which attempt would be inconsistent with any reporting
position otherwise taken by the Administrative Agent, the Issuing Bank or such
Lender on its applicable tax returns.


     (g)     Failure or delay on the part of the Administrative Agent, the Issuing
Bank or any Lender to demand payment of any amounts pursuant to this Section
shall not constitute a waiver of the Administrative Agent’s, the Issuing Bank’s
or such Lender’s right to demand payment thereof; provided that the Borrower
shall not be required to make any payment pursuant to this Section for any
amounts incurred more than 18 months prior to the date that the Administrative
Agent, the Issuing Bank or such Lender, as the case may be, notifies the
Borrower of the Administrative Agent’s, the Issuing Bank’s or such Lender’s
intention to demand payment thereof.





     SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.



     (a)     The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York, except payments to be made directly to the Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.15,
2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.


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


     (d)     Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing
Bank, as the case may be, the amount due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or Issuing Bank
with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


     (e)     If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.06(d) or (e), 2.07(b) or 2.18(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections
until all such unsatisfied obligations are fully paid.





     SECTION 2.19. Mitigation Obligations; Replacement of Lenders. Each Lender’s
claims for reimbursements, payments, indemnities or otherwise under Sections
2.15, 2.16, or 2.17 and Borrower’s obligations with respect thereto shall be
limited and qualified by and subject to the following:


 






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     (a)     Each Lender that asserts its rights with respect thereto or that is
seeking or imposing such reimbursement, payment or indemnity shall provide
evidence regarding the basis of such claim and the calculation and application
thereof in reasonable detail and, in determining such amount, each Lender may
use reasonable methods of attribution and averaging.


     (b)     If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.


     (c)     If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans and participations in LC Disbursements, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the assignee (to the
extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts) and (iii) in the case of any such
assignment resulting from a claim for compensation under Section 2.15 or
payments required to be made pursuant to Section 2.17, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.





ARTICLE III.



Representations and Warranties



     The Borrower represents and warrants to the Administrative Agent and the
Lenders that:





     SECTION 3.01. Organization; Power. Each of the Borrower and its Subsidiaries
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to
carry on its business as now conducted and, except where the failure to do so,
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expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required.





     SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower’s and each applicable Credit Party’s corporate (or equivalent) powers
and have been duly authorized by all necessary corporate (or equivalent)
action. This Agreement has been duly executed and delivered by the Borrower
and constitutes a legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law. Each of the other
Credit Documents has been duly executed and delivered by each of the Borrower
and the other Credit Parties that is a party thereto, and constitutes a legal,
valid and binding obligation of each of the Borrower and the other Credit
Parties that is a party thereto, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.





     SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do
not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture or
other material agreement or instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries (other than asset
transfer restrictions set forth in such agreements or instruments that could be
violated by the creation and perfection of Liens under the Pledge Agreement,
none of which violations could reasonably be expected to result in a Material
Adverse Effect, individually or in the aggregate), and (d) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries pursuant to any indenture or other material agreement or
instrument binding upon the Borrower or any of its Subsidiaries or its assets.





     SECTION 3.04. Financial Condition; No Material Adverse Change.


     (a)     The Borrower has heretofore furnished to the Lenders its consolidated
balance sheet and statements of income, stockholders equity and cash flows (i)
as of and for the fiscal year ended December 31, 2002, reported on by
PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of and
for the fiscal quarter and the portion of the fiscal year ended September 30,
2003, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its Consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.


     (b)     Since December 31, 2002, there has been no material adverse change in
the business, assets, liabilities, operations or condition, financial or
otherwise, of (i) the Borrower or


 






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(ii)  the Borrower and its Subsidiaries, taken as a whole. This
representation is made subject to and in reliance upon paragraph (c) below.


     (c)     By execution and delivery of this Agreement (or an Assignment and
Assumption, in the case of any Person that becomes a Lender after the Effective
Date), the Administrative Agent and each Lender confirm that nothing contained
or disclosed in the Borrower’s Quarterly Report on Form 10-Q for the quarterly
period ended September 30, 2003 filed with the Securities and Exchange
Commission constitutes an event, development or circumstance that constituted
or resulted in a material adverse change of the type described in paragraph (b)
above.





     SECTION 3.05. Title to Properties. Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for minor defects in title that do
not interfere with its ability to conduct its business, and except for any
failure, defect or other matter that could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.





     SECTION 3.06. Litigation. There are no actions, suits or proceedings by or
before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (a) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect or (b) that involve this Agreement, any other Credit Document or the
Transactions.





     SECTION 3.07. Compliance with Laws. Each of the Borrower and its Subsidiaries
is in compliance with all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.





     SECTION 3.08. Investment and Holding Company Status. Neither the Borrower nor
any of its Subsidiaries is (a) an “investment company” as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
“holding company” as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.





     SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.





     SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more


 






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than $10,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent
financial statements reflecting such amounts, exceed by more than $10,000,000
the fair market value of the assets of all such underfunded Plans.





     SECTION 3.11. Disclosure. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or delivered
hereunder (as modified or supplemented by other information so furnished, taken
as a whole) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading; provided
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.





     SECTION 3.12. Subsidiaries. All of Borrower’s Subsidiaries are identified on
the attached Schedule 3.12 (or disclosed in writing to Administrative Agent
after the date of this Agreement to reflect any changes to the schedule as a
result of transactions permitted by this Agreement). All of the outstanding
Equity Interests (or similar voting interests) of such Subsidiaries are (a)
duly authorized and validly issued, and fully paid and nonassessable, (b) owned
of record and beneficially as set forth on the attached Schedule 3.12, free and
clear of any Liens, restrictions, claims, or rights of another Person, other
than Permitted Encumbrances, and (c) not subject to any warrant, option, or
other right of any Person, to acquire the same or subject to any restriction on
transfer thereof, except for restrictions imposed by securities laws and
general corporate or partnership laws.





     SECTION 3.13. Environmental Matters. Except with respect to any matters
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, neither the Borrower nor any of its
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain,
maintain or comply with any permit, license or other approval required under
any Environmental Law, (ii) has become subject to any Environmental Liability,
(iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.





     SECTION 3.14. Intellectual Property. To the Borrower’s knowledge, other than
Disclosed Matters, and except as could not reasonably be expected to result in
a Material Adverse Effect, individually or in the aggregate, the Borrower and
each of its Subsidiaries own or have sufficient legally enforceable rights to
use all material licenses, patents, patent applications, copyrights, service
marks, trademarks, trademark applications, and trade names necessary to
continue to conduct their respective businesses as heretofore conducted by
them, now conducted by them, and now proposed to be conducted by them. To the
Borrower’s knowledge, the Borrower and each of its Subsidiaries are conducting
their respective businesses without infringement or claim of infringement of
any license, patent, copyright, service mark, trademark, trade name, trade
secret, or other intellectual property right of others, other than Disclosed
Matters and other than any such infringements or claims which, if successfully
asserted against or determined adversely to the Borrower or any of its
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reasonably be expected to result in a Material Adverse Effect, individually or
in the aggregate. To the Borrower’s knowledge, no infringement or claim of
infringement by others of any material license, patent, copyright, service
mark, trademark, trade name, trade secret, or other intellectual property of
the Borrower or any of its Subsidiaries exists, except Disclosed Matters and
except where the Borrower or such Subsidiary is actively prosecuting to cease
such infringement, or such infringement if continued unabated could not
reasonably be expected to result in a Material Adverse Effect, individually or
in the aggregate.





     SECTION 3.15. Margin Stock. “Margin stock”, as defined in Regulation U (12
C.F.R. Part 221) of the Board, constitutes less than 25% of those assets of the
Borrower or any of its Subsidiaries which are subject to any limitation on
sale, pledge, or other restrictions hereunder. None of the proceeds of any
Loans hereunder will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any margin stock
or for the purpose of maintaining, reducing or retiring any indebtedness which
was originally incurred to purchase or carry any stock that is currently a
margin stock or for any other purpose which might constitute the Transactions
or any part thereof a “purpose credit” within the meaning of such Regulation U.
Neither the Borrower nor any of its Subsidiaries, nor any agent acting on
behalf of any of the foregoing, has taken or will take any action which might
cause this Agreement or the Transactions to violate Regulation U, Regulation T
or any other regulation of the Board or to violate the Securities Exchange Act
of 1934, in each case as in effect now or as the same may hereafter be in
effect.





     SECTION 3.16. Labor Matters. There are no actual or threatened strikes, labor
disputes, slow downs, walkouts, or other concerted interruptions of operations
by the employees of the Borrower or any of its Subsidiaries except as,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. Hours worked by and payment made to employees of
the Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable law dealing with such matters, other than
any such violations that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. All payments
due from the Borrower or any of its Subsidiaries on account of employee health
and welfare insurance have been paid or accrued as a liability on its books,
other than any such non-payments that, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.





     SECTION 3.17. Solvency. The Borrower and each of the Guarantors and
Pledgors are, and after giving effect to the Transactions will be, Solvent.





ARTICLE IV.



Conditions






     SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 9.02):


     (a)     The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf
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evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.


     (b)     The Administrative Agent (or its counsel) shall have received from
each party to the Guaranty Agreement either (i) a counterpart of the Guaranty
Agreement signed on behalf of such party or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a
signed signature page of the Guaranty Agreement) that such party has signed a
counterpart of the Guaranty Agreement.


     (c)     The Administrative Agent shall have received favorable written
opinions (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Thompson & Knight L.L.P., counsel for the Borrower and
the other Credit Parties, substantially in the form of Exhibit D-1, and (ii)
Rex Mills, Associate General Counsel of the Borrower, substantially in the form
of Exhibit D-2, and in each case covering such other matters relating to the
Borrower, the other Credit Parties, this Agreement, the other Credit Documents
or the Transactions as the Required Lenders shall reasonably request. The
Borrower hereby requests such counsel to deliver such opinion.


     (d)     The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower and
each of the other Credit Parties in their respective jurisdictions of
organization, the authorization of the Transactions and any other legal matters
relating to the Borrower and the other Credit Parties, this Agreement, the
other Credit Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.


     (e)     The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.


     (f)     The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.


     (g)     The Administrative Agent shall have received evidence that all
governmental and third-party approvals necessary in connection with the
financing contemplated hereby shall have been obtained and be in full force and
effect.



     (h)     The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by a Financial Officer of the Borrower, setting forth
reasonably detailed calculations demonstrating compliance, on a pro forma basis
(after giving effect to the Transactions) with Sections 5.11, 6.01, 6.02 and
6.08.


The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
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become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 6:00 p.m., New York City time,
on January 20, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).





     SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:


     (a)     The representations and warranties of the Borrower and its
Subsidiaries set forth in this Agreement and the other Credit Documents shall
be true and correct in all material respects on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable (other than representations and warranties that
by the specific terms thereof apply only as of an earlier date, which
representations and warranties shall be true and correct on and as of such
earlier date).


     (b)     At the time of and immediately after giving effect to such Borrowing
or the issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, no Default or Event of Default shall have occurred and be
continuing.


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





ARTICLE V.



Affirmative Covenants



     Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Administrative Agent and the Lenders that:





     SECTION 5.01. Financial Statements and Other Information. The Borrower will
furnish to the Administrative Agent and each Lender:


     (a)     within 90 days after the end of each fiscal year of the Borrower, its
audited consolidated balance sheet and related statements of operations,
stockholders’ equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all audited in accordance with generally accepted auditing standards and
reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing (without a “going concern” or like
qualification or exception) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its Consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;


     (b)     within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet
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stockholders’ equity and cash flows as of the end of and for such fiscal
quarter and the then-elapsed portion of the fiscal year, setting forth in each
case in comparative form the figures for the corresponding period or periods of
(or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of operations of the
Borrower and its Consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;


     (c)     concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of the Borrower (i)
certifying as to whether a Default or Event of Default has occurred and, if a
Default or Event of Default has occurred, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (ii) setting
forth reasonably detailed calculations demonstrating compliance with Sections
5.11, 6.01, 6.02 and 6.08 and (iii) upon the request of the Administrative
Agent in connection with the financial covenants set forth in Section 5.11,
copies of the Borrower’s internal work papers evidencing or otherwise relating
to the consolidating computations used in determining compliance with such
Section 5.11;


     (d)     promptly after the same become publicly available, copies of all 10-K,
10-Q and 8-K filings and all proxy statements filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Borrower to its
stockholders generally, as the case may be;


     (e)     following the end of each fiscal year of the Borrower and no later
than 30 Business Days after approval by the Board of Directors of the Borrower,
but in any event no later than 90 days after the end of each fiscal year, a
consolidated budget of the Borrower and its Subsidiaries prepared by
management of the Borrower for the next fiscal year that includes projected
consolidated income statements, balance sheets and cash flow statements, and
projections of EBITDA, in each case on a consolidated basis for the Borrower
and its Subsidiaries for each of the four fiscal quarters occurring during such
fiscal year; and


     (f)     promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement or
any other Credit Document, as the Administrative Agent or any Lender may
reasonably request.





     SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following
promptly after the Borrower has knowledge thereof:


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


     (b)     the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that could reasonably be expected to result
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     (c)     the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result
in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $5,000,000; and


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


Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.





     SECTION 5.03. Existence; Conduct of Business. The Borrower (a) will do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and (b) will, and will cause each of its
Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect the legal existence of each of its
Subsidiaries and the rights, licenses, permits, privileges and franchises
material to the conduct of the business of the Borrower and each of its
Subsidiaries; provided that the foregoing clause (b) shall not prohibit (i) any
merger, consolidation, liquidation or dissolution permitted under Section 6.03
or (ii) a termination of the existence of any Subsidiary or of any rights,
licenses, permits, privileges and franchises of the Borrower or any Subsidiary
if the Borrower determines in good faith that such termination is in the best
interests of the Borrower and could not reasonably be expected to result in a
Material Adverse Effect; provided, further, that the Borrower shall not
terminate or permit the termination of the existence of any Subsidiary that is
a Credit Party unless (A) no Default or Event of Default shall exist, both
before and immediately after giving effect to such termination of existence,
and (B) the Borrower shall have provided the Administrative Agent with a
certificate, dated the effective date of such termination of existence and
signed by a Financial Officer of the Borrower, setting forth reasonably
detailed calculations demonstrating compliance with the covenants set forth in
Sections 5.11, 6.01, 6.02 and 6.08 on a pro forma basis (after giving effect to
such termination of existence and, other than in respect of Debt, using the
financial position and components thereof as of the end of the fiscal quarter
then most recently ended and the results of operations and components thereof
for the period of four consecutive fiscal quarters then most recently ended).





     SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each
of its Subsidiaries to, pay its obligations, including Tax liabilities, that if
not paid could reasonably be expected to result in a Material Adverse Effect
before the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.





     SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted except for any failure that could not
reasonably be expected to have a Material Adverse Effect, and (b) maintain,
with financially sound and reputable insurance companies, insurance in such
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and against such risks as are customarily maintained by companies engaged in
the same or similar businesses operating in the same or similar locations.





     SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will,
and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as
often as reasonably requested.





     SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of
its Subsidiaries to, comply with all laws, rules, regulations and orders of any
Governmental Authority, in each case applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.





     SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used only for (a) general corporate purposes of the Borrower and
its Subsidiaries and (b) to finance, in whole or in part, acquisitions. No
part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations T, U and X. Letters of Credit will be issued only
to support the purposes specified in clauses (a) and (b) of this Section.





     SECTION 5.09. Preservation and Protection of Rights. The Borrower shall, and
shall cause each of the other Credit Parties to, perform such acts and duly
authorize, execute, acknowledge, deliver, file and record any additional
documents, instruments, and certificates as the Administrative Agent may
reasonably determine to be necessary in order to perfect, preserve and maintain
the priority of the security interests created under the Pledge Agreement.





     SECTION 5.10. Environmental Laws. The Borrower shall, and shall cause
each of its Subsidiaries to:


     (a)     conduct its business so as to comply with all applicable Environmental
Laws and shall promptly take corrective action to remedy any noncompliance with
any Environmental Law, except where failure to so comply or take such action,
could not reasonably be expected to result in a Material Adverse Effect, either
individually or in the aggregate; and


     (b)     promptly investigate and remediate any known release or threatened
release of any Hazardous Materials on any property owned by the Borrower or any
of its Subsidiaries or at any facility operated by the Borrower or any of its
Subsidiaries to the extent and degree necessary to comply with applicable law
and to assure that any release or threatened release does not result in a
substantial endangerment to human health or the environment except to the
extent, in each case, that the failure to do so could not reasonably be
expected to result in a Material Adverse Event, either individually or in the
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     SECTION 5.11. Minimum Recourse Coverage; Additional Guarantors and Pledged Equity Interests.


     (a)     As used in this Section 5.11, “Minimum Recourse Coverage” means



		
	 	     (i)     the sum of (A) EBITDA of the Borrower plus (B) the aggregate
EBITDA of all Guarantors shall not be less than 65% of Consolidated
EBITDA, in each case for the period of four consecutive fiscal quarters
then most recently ended; and
	 
	 	     (ii)     the sum of (A) EBITDA of the Borrower plus (B) the aggregate
EBITDA of all Guarantors plus (C) the aggregate EBITDA of all Pledged
Foreign Subsidiaries plus (D) the aggregate EBITDA of all Foreign
Subsidiaries that are Subsidiaries of Pledged Foreign Subsidiaries, shall
not be less than 85% of Consolidated EBITDA, in each case for the period
of four consecutive fiscal quarters then most recently ended;



provided that for purposes of this paragraph (a), “EBITDA” for each applicable
entity shall be calculated for such entity in the same manner as “Consolidated
EBITDA” is calculated for the Borrower and its Subsidiaries, but on a
stand-alone basis for such entity without consolidation with any other Person,
eliminating, however, unless otherwise agreed by the Borrower and the
Administrative Agent, (x) in the case of clause (a)(i), debits and credits
between any Subsidiary that is not a Guarantor on the one hand and the Borrower
or a Guarantor on the other hand in respect of Non-Operating Income/Expense,
and (y) in the case of clause (a)(ii), debits and credits between any
Subsidiary that is not a Guarantor, a Pledged Foreign Subsidiary or a Foreign
Subsidiary that is a Subsidiary of a Pledged Foreign Subsidiary on the one hand
and the Borrower, a Guarantor, a Pledged Foreign Subsidiary or a Foreign
Subsidiary that is a Subsidiary of a Pledged Foreign Subsidiary on the other
hand in respect of Non-Operating Income/Expense. For purposes of this Section
5.11, “Non-Operating Income/Expense” means income or expense other than (I)
income derived from or expense incurred in connection with the delivery of
goods or services to a Person other than the Borrower or its Subsidiaries,
whether directly or indirectly as a subcontractor of the Borrower or another
Subsidiary, and (II) income derived from or expense incurred in connection with
selling, general and administrative services.


     (b)     In the event that the consolidated financial statements and
accompanying Financial Officer’s certificate or related work papers delivered
to the Administrative Agent and the Lenders under Section 5.01 for any period
indicate that the Borrower has not complied with the Minimum Recourse Coverage
for such period, the Borrower shall cause one or more Domestic Subsidiaries to
become Guarantors within 10 days after delivery of such financial statements
and Financial Officer’s certificate and/or cause one or more Foreign
Subsidiaries to become Pledged Foreign Subsidiaries within 30 days after
delivery of such financial statements and Financial Officer’s certificate, in
each case in accordance with paragraphs (c) and/or (d) below and such that,
after giving effect thereto, the Borrower would have complied with the Minimum
Recourse Coverage had such Domestic Subsidiaries been Guarantors and/or such
Foreign Subsidiaries been Pledged Foreign Subsidiaries during the applicable
period of determination. Prior to or contemporaneously with any such addition
of Guarantors or Pledged Foreign Subsidiaries, the Borrower shall provide the
Administrative Agent with a certificate signed by a Financial Officer of the
Borrower, certifying as to such compliance and setting forth in reasonable
detail calculations demonstrating such compliance (including, without
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the elimination of all Non-Operating Income/Expense debits and credits, as and
to the extent required under paragraph (a) above).


     (c)     If and to the extent required under paragraph (b) above, the Borrower
shall from time to time cause one or more Domestic Subsidiaries to become a
Guarantor under the Guaranty Agreement by (i) executing and delivering a
joinder to the Guaranty Agreement, in the form attached as Annex A to the
Guaranty Agreement and (ii) executing and delivering such other documentation
as the Administrative Agent may reasonably request in connection with the
foregoing, including certified resolutions and other organizational documents
of such Person 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 above), all in form and scope
reasonably satisfactory to the Administrative Agent.


     (d)     If and to the extent required under paragraph (b) above, the Borrower
shall from time to time cause all Eligible Equity Interests of one or more
First-Tier Foreign Subsidiaries to be pledged to the Administrative Agent to
secure the obligations of the Borrower and the other Credit Parties under this
Agreement and the other Credit Documents by, (i)(A) in the case of the first
instance in which one or more Foreign Subsidiaries are to become Pledged
Foreign Subsidiaries pursuant to this Section 5.11, executing and delivering
and, if necessary, causing one or more Subsidiaries to execute and deliver, the
Pledge Agreement, and (B) in the case of all subsequent instances in which one
or more Foreign Subsidiaries are to become Pledged Foreign Subsidiaries
pursuant to this Section 5.11, causing any applicable Subsidiary that has not
previously executed and delivered the Pledge Agreement or a joinder thereto to
execute and deliver a joinder to the Pledge Agreement in the form attached as
Annex B to the Pledge Agreement and/or executing and delivering, or causing any
applicable Subsidiary to execute and deliver, a supplement to the Pledge
Agreement in the form attached as Annex A to the Pledge Agreement, as
applicable, pledging all Eligible Equity Interests of such First-Tier Foreign
Subsidiar(y)(ies), (ii) pursuant to the Pledge Agreement, delivering or causing
the applicable Subsidiary to deliver to the Administrative Agent all
certificates, stock powers and other documents required by the Pledge Agreement
with respect to all such Eligible Equity Interests and any such First-Tier
Foreign Subsidiary, (iii) taking or causing the applicable Subsidiary to take
such other actions, all as may be necessary to provide the Administrative Agent
with a first priority perfected pledge of and security interest in such
Eligible Equity Interests in such First-Tier Foreign Subsidiar(y)(ies), and
(iv) executing and delivering such other documentation as the Administrative
Agent may reasonably request in connection with the foregoing, including
certified resolutions and other organizational documents of the applicable
Pledgor and favorable opinions of counsel to such Pledgor (which shall cover,
among other things, the legality, validity, binding effect and enforceability
of the documentation referred to above and the first priority perfected nature
of the security interest granted thereby), all in form and scope reasonably
satisfactory to the Administrative Agent.


     (e)     The Borrower may obtain from time to time the release from the
Guaranty Agreement of one or more Domestic Subsidiaries and/or the release from
the pledge of Eligible Equity Interests under the Pledge Agreement of one or
more First-Tier Foreign Subsidiaries if (i) no Default or Event of Default
shall exist, both before and immediately after giving effect to such release,
(ii) after giving effect thereto the Borrower would have complied with the
Minimum Recourse Coverage had such Domestic Subsidiaries not been Guarantors
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Foreign Subsidiaries not been Pledged Foreign Subsidiaries during the
applicable period of determination and (iii) the Borrower shall have provided
the Administrative Agent with a certificate signed by a Financial Officer of
the Borrower and setting forth in reasonable detail calculations demonstrating
compliance with clauses (i) and (ii).





ARTICLE VI.



Negative Covenants



            Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Administrative
Agent and the Lenders that:





     SECTION 6.01. Subsidiary Debt. The Borrower will not permit any Subsidiary
that is not a Guarantor or that is not a Pledged Foreign Subsidiary to, create,
incur, assume or permit to exist any Debt, except:


     (a)     Debt of any such Subsidiary owing to the Borrower or to any Guarantor;
and


     (b)     other Debt of any such Subsidiary; provided that the aggregate
outstanding principal amount of Debt of all Subsidiaries permitted at any time
by this clause (b) shall not exceed an amount equal to 5% of Consolidated Net
Worth as of the last day of the then most recently ended fiscal quarter of the
Borrower.





     SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable but excluding the assignment
or sale of accounts receivable for collection purposes in the ordinary course
of business) or rights in respect of any thereof, except:


     (a)     Liens securing the obligations of the Credit Parties under the Credit
Documents;


     (b)     Permitted Encumbrances;


     (c)     Liens on fixed or capital assets acquired, constructed or improved by
the Borrower or any Subsidiary (or by a Person that subsequently becomes a
Subsidiary or is merged into Borrower or any Subsidiary) and securing Debt
(including Capitalized Lease Obligations) of the Borrower or any Subsidiary or
such Person incurred to finance such acquisition, construction or improvement;
provided that (i) such Liens and the Debt secured thereby are incurred prior to
or within 90 days after such acquisition or the completion of such construction
or improvement, (ii) the Debt secured thereby does not exceed the cost of
acquiring, constructing or improving such fixed or capital assets and (iii)
such Liens shall not apply to any other property or assets of the Borrower or
any Subsidiary or such Person;


     (d)     Liens on property of a Person existing at the time such person becomes
a Subsidiary or is merged into or consolidated with Borrower or any of its
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that (i) such Liens were in existence prior to such acquisition, merger or
consolidation, (ii) such Liens are limited to the assets so encumbered prior to
such acquisition, merger or consolidation, and (iii) such Liens were not
granted in connection with, or in contemplation of, such acquisition, merger or
consolidation; provided, further, that such Liens, to the extent not permitted
under clause (e) below, are discharged within 90 days following the
consummation of such acquisition, merger or consolidation; and


     (e)     other Liens on property or assets of the Borrower or any of its
Subsidiaries; provided that the aggregate outstanding principal amount of Debt
secured by Liens permitted by this clause (e) (excluding any such Debt that is
permitted at such time under Section 6.01(b)) shall not at any time exceed an
amount equal to 5% of consolidated total assets of the Borrower and its
Subsidiaries as of the last day of the then most recently ended fiscal quarter
of the Borrower (adjusted to give pro forma effect to any Acquisition
consummated after such last day of the then most recently ended fiscal
quarter).





     SECTION 6.03. Fundamental Changes. The Borrower will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or sell, transfer, lease
or otherwise dispose of (in one transaction or in a series of transactions) all
or substantially all of the assets of the Borrower and its Subsidiaries, taken
as a whole, including through a sale or other transfer or issuance of Equity
Interests in its Subsidiaries, or liquidate or dissolve; provided that,
notwithstanding the foregoing, if at the time thereof and immediately after
giving effect thereto no Default or Event of Default shall have occurred and be
continuing, (a) any Person may merge into the Borrower in a transaction in
which the Borrower is the surviving entity, (b) any Person may merge with or
into any Subsidiary (so long as such merger, together with any other
transaction or series of transactions, would not result in a transfer of all or
substantially all of the assets of the Borrower and its Subsidiaries, taken as
a whole), and (c) subject, in the case of a Credit Party, to the proviso at the
end of Section 5.03, any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower.





     SECTION 6.04. Acquisitions. The Borrower will not, and will not permit any of
its Subsidiaries to, purchase or otherwise acquire, directly or indirectly, in
any transaction or series of transactions, (a) any ongoing business or all or
substantially all of the assets of any other Person or division thereof,
whether through purchase of assets, merger or otherwise, (b) control of
securities of a Person engaged in an ongoing business representing more than
50% of the ordinary voting power for the election of directors or other
governing position of such Person if the business affairs of such Person are
managed by a board of directors or other governing body or (c) control of more
than 50% of the ownership interest in any partnership, joint venture, limited
liability company, business trust or other Person that is not managed by a
board of directors or other governing body (each, and “Acquisition”) unless, in
each case, no Default or Event of Default exists at the time of such
Acquisition or would arise as a result thereof.





     SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any
of its Subsidiaries to, enter into any Swap Agreement, except (a) Swap
Agreements entered into to hedge or mitigate risks to which the Borrower or any
Subsidiary has actual exposure (other than those in respect of Equity Interests
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Agreements entered into in order to effectively cap, collar or exchange
interest rates (from fixed to floating rates, from floating to fixed rates,
from one floating rate to another floating rate or otherwise) with respect to
any interest-bearing liability or investment of the Borrower or any Subsidiary.





     SECTION 6.06. Transactions with Affiliates. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except transactions (a) each involving total consideration of less
than $250,000, (b) at prices and on terms and conditions not less favorable to
the Borrower or such Subsidiary than could be obtained on an arm’s-length basis
from unrelated third parties, (c) between or among the Borrower and its
Subsidiaries not involving any other Affiliate of the Borrower or (d)
consisting of the declaration or payment of dividends or other distributions
(whether in cash, securities or other property) with respect to any Equity
Interests in the Borrower, or payments (whether in cash, securities or other
property), including any sinking fund or similar deposits, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any such Equity Interests in the Borrower or any option, warrant or other right
to acquire any such Equity Interests in the Borrower.





     SECTION 6.07. Agreements Restricting Subsidiaries. The Borrower will not, and
will not permit any of its Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon the ability of any Subsidiary to pay
dividends or other distributions with respect to any of its Equity Interests or
to make or repay loans or advances to the Borrower or any other Subsidiary or
to guarantee Debt of the Borrower or any other Subsidiary; provided that the
foregoing shall not apply to restrictions and conditions imposed by law,
hereunder or under any of the other Credit Documents, under the Synthetic Lease
Documents (solely with respect to the Subsidiary that is the lessee thereunder)
or to customary restrictions and conditions contained in agreements relating to
the sale of a Subsidiary pending such sale (provided such restrictions and
conditions apply only to the Subsidiary that is to be sold).





     SECTION 6.08. Financial Covenants.


     (a)     Debt/EBITDA Ratio. The Borrower will not, at any time, permit the
ratio of Consolidated Funded Indebtedness at such time to Consolidated EBITDA
for the period of four consecutive fiscal quarters then most recently ended
(the “Debt/EBITDA Ratio”) to exceed 1.75 to 1.00;


provided that if (i) the Synthetic Lease Documents are hereafter amended or
(ii) the obligations of the Borrower under the Synthetic Lease Documents are
hereafter refinanced with the proceeds of a replacement credit facility, in
each case providing for a maximum Debt/EBITDA Ratio thereunder of greater than
1.75 to 1.00, this Section 6.08(a) shall upon the written request of the
Borrower be modified to increase the Debt/EBITDA Ratio hereunder to the same
level as set forth in such amended Synthetic Lease Documents or such
replacement credit facility, as applicable, but not greater than 2.25 to 1.00;
provided, further, however, that if such amended Synthetic Lease Documents or
such replacement credit facility, as applicable, contain additional financial
covenants or financial covenants more restrictive than those set forth in the
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Lease Documents as of the date of this Agreement, this Section 6.08 shall also
be modified concurrently therewith to add such additional or more restrictive
financial covenants. Any such modification or modifications shall be effected
by an amendment that is executed in accordance with Section 9.02 by the
Borrower and the Administrative Agent, each of the Lenders hereby consenting to
such amendment in such manner.


     (b)     Interest Coverage Ratio. The Borrower will not, at any time, permit
the ratio of Consolidated EBIT to Consolidated Interest Expense, in each case
for the period of four consecutive fiscal quarters then most recently ended, to
be less than 6.00 to 1.00.


     (c)     Capitalization Ratio. The Borrower will not, at any time, permit the
ratio of Consolidated Funded Indebtedness at such time to the sum of
Consolidated Funded Indebtedness at such time plus Consolidated Net Worth at
such time to exceed 0.45 to 1.00.


     (d)     Current Ratio. The Borrower will not, at any time, permit the ratio
of its consolidated current assets at such time to its consolidated current
liabilities at such time to be less than 1.25 to 1.00.





ARTICLE VII.



Events of Default



     If any of the following events (“Events of Default”) shall occur:


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


     (b)     the Borrower (and, if applicable, any Guarantor or Pledgor) shall fail
to pay any interest on any Loan or any fee or any other amount (other than an
amount referred to in clause (a) of this Article) payable under this Agreement
or any of the other Credit Documents, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of three
Business Days;


     (c)     any representation or warranty made or deemed made by or on behalf of
the Borrower or any other Credit Party in or in connection with this Agreement,
any other Credit Document or any amendment or modification hereof or thereof or
waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement, any other Credit Document or any amendment or modification hereof or
thereof or waiver hereunder or thereunder, shall prove to have been incorrect
in any material respect when made or deemed made;


     (d)     the Borrower shall fail to observe or perform any covenant or
agreement contained in Section 5.02, 5.03 (with respect to the Borrower’s
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     (e)     the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article), or the Borrower or any other Credit Party
shall fail to observe or perform any covenant or agreement contained in any
other Credit Document to which it is a party, and in each case such failure
shall continue unremedied for a period of 30 days after delivery of notice
thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);


     (f)     the Borrower or any Subsidiary shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable or any other
event or condition occurs, in each case that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that (i) any condition for the giving
of notice, the lapse of time or both shall have occurred and (ii) this clause
(f) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Debt;


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


     (h)     the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;


     (i)     the Borrower or any Subsidiary shall become unable, admit in writing
its inability or fail generally to pay its debts as they become due;


     (j)     one or more judgments for the payment of money in an aggregate amount
in excess of $10,000,000 (to the extent not covered by independent third-party
insurance provided by a solvent insurer) shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution shall
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creditor to attach or levy upon any assets of the Borrower or any
Subsidiary to enforce any such judgment;


     (k)     an ERISA Event shall have occurred that, in the reasonable judgment of
the Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;


     (l)     an “Event of Default” under (and as such term is defined in) any of
the Synthetic Lease Documents shall occur;


     (m)     a Change in Control shall occur; or


     (n)     (i) any Credit Document, other than the Pledge Agreement or any
ancillary Credit Document entered in connection therewith for the purpose of
creating, perfecting or preserving Liens thereunder, shall at any time after
its execution and delivery and for any reason, cease to be in full force and
effect in any material respect or be declared to be null and void (other than
in accordance with its terms); (ii) the Pledge Agreement or any ancillary
Credit Document entered in connection therewith for the purpose of creating,
perfecting or preserving Liens thereunder shall at any time after its execution
and delivery and for any reason, cease to be in full force and effect in any
material respect or be declared to be null and void (other than in accordance
with its terms), and in each case such cessation or declaration shall continue
unremedied for a period of 30 days after delivery of notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender); or (iii) the validity or enforceability of any Credit Document
shall be contested by any Credit Party party thereto or any Credit Party shall
deny in writing that it has any or any further liability or obligation under
any such Credit Document;


then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent shall at the
request of, or may with the consent of, the Required Lenders, by notice to the
Borrower, take any one or more of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the Commitments
shall terminate immediately (and in case of any event with respect to the
Borrower described in clause (g) or (h) of this Article, the Commitments shall
automatically terminate); (ii) declare the Loans then outstanding to be due and
payable in whole (or in part, in which case any principal not so declared to be
due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Loans so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of
the Borrower accrued hereunder, shall become due and payable immediately,
without presentment, demand, protest or other notice of any kind, including,
without limitation, notice of acceleration and notice of intent to accelerate,
all of which are hereby waived by the Borrower (and in case of any event with
respect to the Borrower described in clause (g) or (h) of this Article, the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, including, without limitation, notice of acceleration
and notice of intent to accelerate, all of which are hereby waived by the
Borrower); (iii) reduce any claim to judgment; (iv) to the extent permitted by
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each Lender shall be entitled to, exercise) rights of offset or bankers’ liens
against the interest of any Credit Party in and to every account and other
property of any Credit Party that is in the possession of the Administrative
Agent or any Lender to the extent of the full amount of all obligations under
this agreement and the other Credit Documents (each Credit Party being deemed,
to the fullest extent permitted by applicable law, directly obligated to the
Administrative Agent and each Lender in the full amount of all such obligations
for such purposes); and (v) exercise any and all other legal or equitable
rights and remedies afforded by the Credit Documents or under applicable law.





ARTICLE VIII.



The Administrative Agent



     (a)     Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.


     (b)     The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.


     (c)     The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of
the foregoing, (i) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has occurred
and is continuing, (ii) the Administrative Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the
Administrative Agent is required to exercise in writing as directed by the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (iii)
except as expressly set forth herein, the Administrative Agent shall not have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default or
Event of Default (other than a Default or Event of Default under clause (a) or
(b) of Article VII in respect of any amount payable to the Administrative
Agent) unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
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covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.


     (d)     The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.


     (e)     The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.


     (f)     Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New
York, or an Affiliate of any such bank. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.


     (g)     Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
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Agreement. Each Lender also acknowledges that it will, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.





ARTICLE IX.



Miscellaneous






     SECTION 9.01. Notices.


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



		
	 	     (i)     if to the Borrower, to it at 2300 West Plano Parkway, Plano,
Texas 75075, Attention of Vice President of Finance (Telecopy No.
972-577-6790), with copies to the same address to the Attention of
Treasurer (Telecopy No. 972-577-6791) and to the Attention of the General
Counsel (Telecopy No. 972-577-6085);




		
	 	     (ii)     if to the Administrative Agent, to JPMorgan Chase Bank, 2200
Ross Avenue, 5th Floor, Dallas, Texas 75201, Attention of Relationship
Manager (Mae Reeves) (Telecopy No. (214) 965-2884), with a copy to
JPMorgan Chase Bank, 1111 Fannin Street, 10th Floor, Houston, Texas
77002, Attention of Agency Services (Oliver Chang) (Telecopy No. (713)
750-2666);




		
	 	     (iii)     if to the Issuing Bank, to JPMorgan Chase Bank, 2200 Ross
Avenue, 5th Floor, Dallas, Texas 75201, Attention of Relationship
Manager (Mae Reeves) (Telecopy No. (214) 965-2884); and




		
	 	     (iv)     if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.



     (b)     Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.


     (c)     Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.


 






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     SECTION 9.02. Waivers; Amendments.


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


     (b)     Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement (except as provided in Section 2.09(d)) or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written
consent of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.18(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, or
(v) change any of the provisions of this Section or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; provided further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Issuing Bank hereunder without the prior written consent of the Administrative
Agent or the Issuing Bank, as the case may be.





     SECTION 9.03. Expenses; Indemnity; Damage Waiver.


     (a)     The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-


 






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pocket expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the reasonable fees, charges and disbursements of any counsel
for the Administrative Agent, the Issuing Bank or any Lender, in connection
with the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such reasonable
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit. The Administrative
Agent, the Issuing Bank and each Lender agree, to the extent feasible, and to
the extent a conflict of interest does not exist in the good faith opinion of
the Administrative Agent, the Issuing Bank or any Lender, to use one law firm
in each applicable jurisdiction in connection with matters addressed in the
foregoing clause (iii), to the extent they seek reimbursement for the expenses
thereof from the Borrower.


     (b)     The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, the other Credit Documents or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto and to
the other Credit Documents of their respective obligations hereunder and
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of
the proceeds therefrom (including any refusal by the Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses 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. Without limiting
any provision of this Agreement or any other Credit Document, it is the express
intention of the parties hereto that EACH INDEMNITEE SHALL BE INDEMNIFIED FROM
AND HELD HARMLESS AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND
RELATED EXPENSES ARISING OUT OF OR RESULTING FROM THE SOLE OR CONTRIBUTORY
NEGLIGENCE OF SUCH INDEMNITEE.


     (c)     To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or the Issuing Bank under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the


 






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case may be, was incurred by or asserted against the Administrative Agent or
the Issuing Bank in its capacity as such.


     (d)     To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement, any other Credit Document, any agreement or instrument
contemplated hereby or thereby, the Transactions, any Loan or Letter of Credit
or the use of the proceeds thereof.


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





     SECTION 9.04. 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 (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that (i) the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may
assign or otherwise transfer its rights or obligations hereunder except in
accordance with this Section. Nothing in this Agreement or any other Credit
Document, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of
this Section) and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement or the other Credit Documents.



		
	 	     (b)(i)     Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement and the other Credit
Documents (including all or a portion of its Commitment and the Loans at
the time owing to it) with the prior written consent (such consent not to
be unreasonably withheld) of:




		
	 	     (A)     the Borrower; provided that no consent of the Borrower
shall be required for an assignment to a Lender, an Affiliate of a
Lender, an Approved Fund or, if an Event of Default has occurred
and is continuing, any other assignee; and




		
	 	     (B)     the Administrative Agent; provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment
immediately prior to giving effect to such assignment.



 






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	 	For the purposes of this Section 9.04(b)(i), the term “Approved Fund” has
the following meaning:




		
	 	     “Approved Fund” means any Person (other than a natural person) that
is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and
that is administered or managed by a Lender, an Affiliate of a Lender or
an entity or an Affiliate of an entity that administers or manages a
Lender.




		
	 	     (ii)     Assignments shall be subject to the following additional
conditions:




		
	 	     (A)     except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender’s Commitment or Loans, the amount of
the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each
of the Borrower and the Administrative Agent otherwise consent;
provided that no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing;




		
	 	     (B)     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 and the other Credit Documents;
provided that this clause shall not be construed to prohibit the
assignment of a proportionate part of all the assigning Lender’s
rights and obligations;




		
	 	     (C)     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; and




		
	 	     (D)     the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire.




		
	 	     (iii)     Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) of this Section, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall
be a party hereto 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 other Credit Documents, 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 the other Credit Documents (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights
and obligations under this Agreement and the other Credit Documents, such
Lender shall cease to be a party hereto but shall continue to be entitled
to the benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment
or transfer by a Lender of rights or obligations under this Agreement and
the other Credit Documents that does not comply with this Section shall
be treated for purposes of this Agreement as a



 






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	 	sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.




		
	 	     (iv)     The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices 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 Commitment
of, and principal amount of the Loans and LC Disbursements 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, the Issuing Bank 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 and the
other Credit Documents, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower, the Issuing
Bank and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




		
	 	     (c)(i)     Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the
assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee
referred to in paragraph (b) of this Section and any written consent to
such assignment required by paragraph (b) of this Section, the
Administrative Agent shall accept such Assignment and Assumption and
record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement and the other Credit
Documents unless it has been recorded in the Register as provided in this
paragraph.




		
	 	     (ii)     Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or
more banks or other entities (a “Participant”) in all or a portion of
such Lender’s rights and obligations under this Agreement and the other
Credit Documents (including all or a portion of its Commitment and the
Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement and the other Credit Documents shall remain unchanged, (B)
such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement and the other
Credit Documents. 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 the other Credit Documents
and to approve any amendment, modification or waiver of any provision of
this Agreement and the other Credit Documents; provided, further, that
such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.02(b)
that affects such Participant. Subject to paragraph (c)(ii) of this
Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of



 






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	 	Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.18(c) as though it were a Lender.




		
	 	     (iii)     A Participant shall not be entitled to receive any greater
payment under Section 2.15 or 2.17 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.17 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.17(e) as though it
were a Lender.



     (d)     Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.





     SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement or any
other Credit Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement
and the other Credit Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or any of and the other Credit Documents is outstanding and unpaid or
any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03
and Article VIII shall survive and remain in full force and effect regardless
of the consummation of the transactions contemplated hereby, the repayment of
the Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement and the other Credit Documents
or any provision hereof or thereof.





     SECTION 9.06. Counterparts; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Except as provided in Section 4.01, this
Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.


 






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     SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.





     SECTION 9.08. Governing Law; Jurisdiction; Consent to Service of Process.


     (a)     EXCEPT AS OTHERWISE PROVIDED IN ANY CREDIT DOCUMENT, THE LAWS OF THE
STATE OF TEXAS (OTHER THAN CONFLICT-OF-LAW PROVISIONS THEREOF) SHALL GOVERN THE
RIGHTS AND DUTIES OF THE PARTIES TO THE CREDIT DOCUMENTS AND THE VALIDITY,
CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THE CREDIT DOCUMENTS.


     (b)     The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the non-exclusive jurisdiction of the courts of the
State of Texas or of the United States District Court for the Northern District
of Texas, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or any of the other Credit
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Texas State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, the Issuing
Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Credit Documents against the
Borrower or its properties in the courts of any jurisdiction.


     (c)     The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any of the other Credit
Documents in any court referred to in paragraph (b) of this Section. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.


     (d)     Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.





     SECTION 9.09. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF


 






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ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.





     SECTION 9.10. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.





     SECTION 9.11. Confidentiality. Each of the Administrative Agent, the Issuing
Bank 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 accountants and legal counsel
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential), (b) to the extent requested by any regulatory
authority, (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
or any of the other Credit Documents, (e) in connection with the exercise of
any remedies hereunder or any suit, action or proceeding relating to this
Agreement or any of the other Credit Documents or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or any of the other Credit
Documents, or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower and its obligations
or (iii) any of its agents or advisors (other than its accountants and legal
counsel), (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach
of this Section or (ii) becomes available to the Administrative Agent, the
Issuing Bank or any Lender on a non-confidential basis from a source other than
the Borrower. For the purposes of this Section, “Information” means all
information received from the Borrower relating to the Borrower or its
business, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a non-confidential
basis prior to disclosure by the Borrower. 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.





     SECTION 9.12. Interest Rate Limitation. All agreements between the Borrower,
any of the other Credit Parties, the Administrative Agent or any Lender,
whether now existing or hereafter arising and whether written or oral, are
hereby expressly limited so that in no contingency or event whatsoever, whether
by reason of demand being made or otherwise, shall the amount contracted for,
charged, reserved or received by the Administrative Agent or any Lender for the
use, forbearance or detention of the money to be loaned under this Agreement or
otherwise or for the payment or performance of any covenant or obligation
contained herein or in any other Credit Document exceed the Highest Lawful
Rate. If, as a result of any circumstances whatsoever, fulfillment by the
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any of such documents, at the time performance of such provision shall be due,
shall involve transcending the limit of validity prescribed by applicable usury
law or result in the Administrative Agent or any Lender having or being deemed
to have contracted for, charged, reserved or received interest (or amounts
deemed to be interest) in excess of the maximum lawful rate or amount of
interest allowed by applicable law to be so contracted for, charged, reserved
or received by the Administrative Agent or such Lender, then, ipso facto, the
obligation to be fulfilled by the Borrower or any of its Subsidiaries, as
applicable, shall be reduced to the limit of such validity, and if, from any
such circumstance, the Administrative Agent or any Lender shall ever receive
interest or anything which might be deemed interest under applicable law which
would exceed the Highest Lawful Rate, such amount which would be excessive
interest shall be refunded to the Borrower or the applicable Subsidiary, as
applicable, or, to the extent (a) permitted by applicable law and (b) such
excessive interest does not exceed the unpaid principal balance of the Loans
and the amounts owing on other obligations of the Borrower or any of its
Subsidiaries, as applicable, to the Administrative Agent or any Lender under
any Credit Document, applied to the reduction of the principal amount owing on
account of the Loans or the amounts owing on other obligations of the Borrower
or any of its Subsidiaries, as applicable, to the Administrative Agent or any
Lender under any Credit Document and not to the payment of interest. All sums
paid or agreed to be paid to the Administrative Agent or any Lender for the
use, forbearance, or detention of the indebtedness of the Borrower or any of
its Subsidiaries, as applicable, to the Administrative Agent or any Lender
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full term of such indebtedness until
payment in full of the principal thereof (including the period of any renewal
or extension thereof) so that the interest on account of such indebtedness
shall not exceed the Highest Lawful Rate. The terms and provisions of this
Section shall control and supersede every other provision hereof and of all
other agreements between the Borrower or any of its Subsidiaries and the
Administrative Agent and the Lenders.





     SECTION 9.13. Inapplicability of Chapter 346 et seq. The Borrower, the
Administrative Agent and the Lenders hereby agree that the provisions of
Chapter 346 of the Texas Finance Code, which replaced Tex. Rev. Civ. Stat. Ann.
art. 5069-15.01 et seq. (Vernon 1987) (regulating certain revolving credit
loans and revolving tri-party accounts), shall not apply to this Agreement or
any of the other Credit Documents.





     SECTION 9.14. Waiver of Consumer Rights. THE BORROWER HEREBY WAIVES ITS
RIGHTS UNDER THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION
17.41 ET. SEQ. BUSINESS & COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL
RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN
SELECTION, THE BORROWER VOLUNTARILY CONSENTS TO THIS WAIVER. THE BORROWER
EXPRESSLY WARRANTS AND REPRESENTS THAT IT (a) IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION RELATIVE TO THE ADMINISTRATIVE AGENT AND THE
LENDERS, AND (b) HAS BEEN REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.





     SECTION 9.15. Co-Syndication Agents and Documentation Agent. The Lenders
identified in this Agreement as “Co-Syndication Agents” and “Documentation
Agent”, respectively, have no right, power, obligation, liability,
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Agreement other than those applicable to all Lenders as such. Without
limitation of the foregoing, the Lenders so identified as “Co-Syndication
Agents” and “Documentation Agent”, respectively, shall not have and shall not
be deemed to have any fiduciary relationship with any Lender. Each Lender
acknowledges that it has not relied, and will not rely, on the Lenders so
identified as “Co-Syndication Agents” and “Documentation Agent”, respectively,
in taking or not taking action hereunder.





     SECTION 9.16. FINAL AGREEMENT. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


[Remainder of this page blank; signature pages follow]



 






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




 



	 	 	 	 	 	 	 
	 	 	PEROT SYSTEMS CORPORATION,

as Borrower
	 
	 	 	
By:
	 	 	/s/ Russell Freeman
	 	 	 	

	 	 	 	 	Name:
	Russell Freeman
	 	 	 	 	 Title:
	Vice President and Chief
Financial Officer




	 	 	 	 	 	 	 
	 	 	
By:
	 	 	/s/ John Harper
	 	 	 	

	 	 	 	 	Name:
	John Harper
	 	 	 	 	Title:
	Vice President





	 	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, as Administrative
Agent, as Issuing Bank and as a Lender
	 
	 	 	
By:
	 	 	/s/ Mae Reeves
	 	 	 	

	 	 	 	 	Name:
	Mae Reeves
	 	 	 	 	Title:
	Vice President







	 	 	 	 	 	 	 
	 	 	
KEYBANK NATIONAL ASSOCIATION, as
Co-Syndication Agent and as a Lender

	 
	 	 	
By:
	 	 	/s/ Michael Vegh
	 	 	 	

	 	 	 	 	Name:
	Michael Vegh
	 	 	 	 	Title:
	Portfolio Manager





	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK, as Co-Syndication Agent and
as a Lender

	 
	 	 	
By:
	 	 	/s/ Michael S. Murphey
	 	 	 	

	 	 	 	 	Name:
	Michael S. Murphey
	 	 	 	 	Title:
	Director



 






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	 	 	WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Documentation Agent

and as a Lender

	 
	 	 	
By:
	 	 	/s/ Zach Johnson
	 	 	 	

	 	 	 	 	Name:
	Zach Johnson
	 	 	 	 	Title:
	Vice President





	 	 	 	 	 	 	 
	 	 	SOUTHWEST BANK OF TEXAS, N.A.,

as a Lender

	 
	 	 	
By:
	 	 	/s/ Melinda N. Jackson
	 	 	 	

	 	 	 	 	Name:
	Melinda N. Jackson
	 	 	 	 	Title:
	Senior Vice President






	 	 	 	 	 	 	 
	 	 	SOUTHTRUST BANK,

as a Lender

	 
	 	 	
By:
	 	 	/s/ Louis W. Edward
	 	 	 	

	 	 	 	 	Name:
	Louis W. Edward
	 	 	 	 	Title:
	Vice President






	 	 	 	 	 	 	 
	 	 	COMERICA BANK,

as a Lender

	 
	 	 	
By:
	 	 	/s/ Janet Wheeler
	 	 	 	

	 	 	 	 	Name:
	Janet Wheeler
	 	 	 	 	Title:
	Corporate Banking Officer