Exhibit 10.01


 




 





 


CREDIT
AGREEMENT


 


Dated as
of October 26, 2005


 


among


 


LAUREATE EDUCATION, INC.,


as the Borrower,


 


THE
SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,


as the Guarantors,


 


BANK OF
AMERICA, N.A.,


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


 


and


 


THE OTHER
LENDERS PARTY HERETO


 




 
























 


TABLE OF
CONTENTS


 


 


	
  ARTICLE
  I   DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms.

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions.

  	
  22

  
	
  1.03

  	
  Accounting Terms.

  	
  23

  
	
  1.04

  	
  Rounding.

  	
  23

  
	
  1.05

  	
  Times of Day.

  	
  23

  
	
  1.06

  	
  Letter of Credit Amounts.

  	
  23

  
	
  1.07

  	
  Exchange Rates; Currency
  Equivalents.

  	
  24

  
	
  1.08

  	
  Additional Alternative
  Currencies.

  	
  24

  
	
  1.09

  	
  Change of Currency.

  	
  24

  
	
  ARTICLE II   THE COMMITMENTS AND CREDIT EXTENSIONS

  	
  25

  
	
  2.01

  	
  Revolving Loans.

  	
  25

  
	
  2.02

  	
  Borrowings, Conversions and
  Continuations of Revolving Loans.

  	
  26

  
	
  2.03

  	
  Letters of Credit.

  	
  27

  
	
  2.04

  	
  Swing Line Loans.

  	
  34

  
	
  2.05

  	
  Prepayments.

  	
  37

  
	
  2.06

  	
  Termination or Reduction of
  Aggregate Revolving Commitments.

  	
  39

  
	
  2.07

  	
  Repayment of Loans.

  	
  39

  
	
  2.08

  	
  Interest.

  	
  39

  
	
  2.09

  	
  Fees.

  	
  40

  
	
  2.10

  	
  Computation of Interest and
  Fees.

  	
  41

  
	
  2.11

  	
  Evidence of Debt.

  	
  41

  
	
  2.12

  	
  Payments Generally;
  Administrative Agent’s Clawback.

  	
  41

  
	
  2.13

  	
  Sharing of Payments by
  Lenders.

  	
  43

  
	
  ARTICLE III   TAXES, YIELD PROTECTION AND ILLEGALITY

  	
  44

  
	
  3.01

  	
  Taxes.

  	
  44

  
	
  3.02

  	
  Illegality.

  	
  46

  
	
  3.03

  	
  Inability to
  Determine Rates.

  	
  46

  
	
  3.04

  	
  Increased Costs.

  	
  46

  
	
  3.05

  	
  Compensation for
  Losses.

  	
  48

  
	
  3.06

  	
  Mitigation
  Obligations; Replacement of Lenders.

  	
  48

  
	
  3.07

  	
  Survival.

  	
  49

  
	
  ARTICLE IV   GUARANTY

  	
  49

  
	
  4.01

  	
  The Guaranty.

  	
  49

  
	
  4.02

  	
  Obligations
  Unconditional.

  	
  49

  
	
  4.03

  	
  Reinstatement.

  	
  50

  
	
  4.04

  	
  Certain
  Additional Waivers.

  	
  50

  
	
  4.05

  	
  Remedies.

  	
  51

  
	
  4.06

  	
  Rights of
  Contribution.

  	
  51

  
	
  4.07

  	
  Guarantee of
  Payment; Continuing Guarantee.

  	
  51

  
	
  ARTICLE V   CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

  	
  51

  
	
  5.01

  	
  Conditions of
  Initial Credit Extension.

  	
  51

  
	
  5.02

  	
  Conditions to
  all Credit Extensions.

  	
  53

  
	
  ARTICLE
  VI   REPRESENTATIONS AND WARRANTIES

  	
  53

  
	
  6.01

  	
  Existence,
  Qualification and Power.

  	
  54

  
	
  6.02

  	
  Authorization;
  No Contravention.

  	
  54

  
	
  6.03

  	
  Governmental
  Authorization; Other Consents.

  	
  54

  



 





















 


	
  6.04

  	
  Binding Effect.

  	
  54

  
	
  6.05

  	
  Financial
  Statements; No Material Adverse Effect; No Internal Control Event.

  	
  54

  
	
  6.06

  	
  Litigation.

  	
  55

  
	
  6.07

  	
  No Default.

  	
  55

  
	
  6.08

  	
  Ownership of
  Property; Liens.

  	
  55

  
	
  6.09

  	
  Environmental
  Compliance.

  	
  56

  
	
  6.10

  	
  Insurance.

  	
  56

  
	
  6.11

  	
  Taxes.

  	
  56

  
	
  6.12

  	
  ERISA Compliance.

  	
  57

  
	
  6.13

  	
  Subsidiaries.

  	
  57

  
	
  6.14

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

  	
  57

  
	
  6.15

  	
  Disclosure.

  	
  58

  
	
  6.16

  	
  Compliance with Laws.

  	
  58

  
	
  6.17

  	
  [RESERVED].

  	
  58

  
	
  6.18

  	
  Solvency.

  	
  58

  
	
  6.19

  	
  [RESERVED].

  	
  58

  
	
  6.20

  	
  Business Locations.

  	
  58

  
	
  6.21

  	
  Brokers’ Fees.

  	
  58

  
	
  ARTICLE VII   AFFIRMATIVE COVENANTS

  	
  59

  
	
  7.01

  	
  Financial Statements.

  	
  59

  
	
  7.02

  	
  Certificates;
  Other Information.

  	
  59

  
	
  7.03

  	
  Notices.

  	
  61

  
	
  7.04

  	
  Payment of
  Obligations.

  	
  62

  
	
  7.05

  	
  Preservation of
  Existence, Etc.

  	
  62

  
	
  7.06

  	
  Maintenance of
  Properties.

  	
  62

  
	
  7.07

  	
  Maintenance of
  Insurance.

  	
  62

  
	
  7.08

  	
  Compliance with Laws.

  	
  62

  
	
  7.09

  	
  Books and Records.

  	
  63

  
	
  7.10

  	
  Inspection Rights.

  	
  63

  
	
  7.11

  	
  Use of Proceeds.

  	
  63

  
	
  7.12

  	
  Additional
  Subsidiaries.

  	
  63

  
	
  7.13

  	
  ERISA Compliance.

  	
  64

  
	
  7.14

  	
  Pledged Assets.

  	
  64

  
	
  7.15

  	
  Maintenance of
  Accounts.

  	
  64

  
	
  7.16

  	
  Post-Closing Matters.

  	
  64

  
	
  ARTICLE VIII   NEGATIVE COVENANTS

  	
  65

  
	
  8.01

  	
  Liens.

  	
  65

  
	
  8.02

  	
  [Reserved].

  	
  66

  
	
  8.03

  	
  Indebtedness.

  	
  66

  
	
  8.04

  	
  Fundamental Changes.

  	
  67

  
	
  8.05

  	
  Dispositions.

  	
  67

  
	
  8.06

  	
  [Reserved].

  	
  67

  
	
  8.07

  	
  Change in Nature
  of Business.

  	
  67

  
	
  8.08

  	
  Transactions
  with Affiliates and Insiders.

  	
  68

  
	
  8.09

  	
  Burdensome
  Agreements.

  	
  68

  
	
  8.10

  	
  Use of Proceeds.

  	
  68

  
	
  8.11

  	
  Consolidated
  Leverage Ratio.

  	
  68

  
	
  8.12

  	
  [RESERVED]

  	
  69

  
	
  8.13

  	
  Organization
  Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.

  	
  69

  
	
  8.14

  	
  Ownership of
  Subsidiaries.

  	
  69

  



 





















 


 


	
  ARTICLE IX   EVENTS OF DEFAULT AND REMEDIES

  	
  69

  
	
  9.01

  	
  Events of Default.

  	
  69

  
	
  9.02

  	
  Remedies Upon Event of Default.

  	
  71

  
	
  9.03

  	
  Application of Funds.

  	
  72

  
	
  ARTICLE X   ADMINISTRATIVE AGENT

  	
  73

  
	
  10.01

  	
  Appointment and
  Authority.

  	
  73

  
	
  10.02

  	
  Rights as a Lender.

  	
  73

  
	
  10.03

  	
  Exculpatory
  Provisions.

  	
  73

  
	
  10.04

  	
  Reliance by
  Administrative Agent.

  	
  74

  
	
  10.05

  	
  Delegation of Duties.

  	
  74

  
	
  10.06

  	
  Resignation of
  Administrative Agent.

  	
  74

  
	
  10.07

  	
  Non-Reliance
  on Administrative Agent and Other Lenders.

  	
  75

  
	
  10.08

  	
  No Other Duties; Etc.

  	
  75

  
	
  10.09

  	
  Administrative
  Agent May File Proofs of Claim.

  	
  76

  
	
  10.10

  	
  Collateral and
  Guaranty Matters.

  	
  76

  
	
  ARTICLE XI   MISCELLANEOUS

  	
  77

  
	
  11.01

  	
  Amendments, Etc.

  	
  77

  
	
  11.02

  	
  Notices and
  Other Communications; Facsimile Copies.

  	
  79

  
	
  11.03

  	
  No Waiver;
  Cumulative Remedies.

  	
  80

  
	
  11.04

  	
  Expenses;
  Indemnity; and Damage Waiver.

  	
  81

  
	
  11.05

  	
  Payments Set Aside.

  	
  82

  
	
  11.06

  	
  Successors and
  Assigns.

  	
  83

  
	
  11.07

  	
  Treatment of
  Certain Information; Confidentiality.

  	
  85

  
	
  11.08

  	
  Set-off.

  	
  86

  
	
  11.09

  	
  Interest Rate
  Limitation.

  	
  87

  
	
  11.10

  	
  Counterparts;
  Integration; Effectiveness.

  	
  87

  
	
  11.11

  	
  Survival of
  Representations and Warranties.

  	
  87

  
	
  11.12

  	
  Severability.

  	
  87

  
	
  11.13

  	
  Replacement of
  Lenders.

  	
  88

  
	
  11.14

  	
  Governing Law;
  Jurisdiction; Etc.

  	
  88

  
	
  11.15

  	
  Waiver of
  Right to Trial by Jury.

  	
  89

  
	
  11.16

  	
  USA PATRIOT Act
  Notice.

  	
  89

  
	
  11.17

  	
  Judgment Currency.

  	
  89

  



 





















 


SCHEDULES


 


1.01         Mandatory
Cost Formulae


2.01         Commitments
and Applicable Percentages


2.03         Existing
Letters of Credit


6.13         Subsidiaries


6.20         Location
of Chief Executive Office, Etc.


8.01         Liens
Existing on the Closing Date


8.03         Indebtedness
Existing on the Closing Date


11.02       Certain
Addresses for Notices


11.06       Processing
and Recordation Fees


 


EXHIBITS


 


2.02         Form
of Loan Notice


2.11(a)    Form
of Tranche A Revolving Note


2.11(b)    Form
of Tranche B Revolving Note


2.11(c)    Form
of Swing Line Note


7.02         Form
of Compliance Certificate


7.12         Form
of Joinder Agreement


11.06       Form
of Assignment and Assumption


 





















 


CREDIT
AGREEMENT


 


This CREDIT AGREEMENT is entered into as of October 26,
2005 among LAUREATE EDUCATION, INC., a Maryland corporation (the “Borrower”),
the Guarantors (defined herein), the Lenders (defined herein) and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.


 


The Borrower has requested that the Lenders provide
$120 million in credit facilities for the purposes set forth herein, and the
Lenders are willing to do so on the terms and conditions set forth herein.


 


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


 


ARTICLE I



DEFINITIONS AND ACCOUNTING TERMS


 


1.01         Defined Terms.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Aggregate Revolving Commitments” means the
Revolving Commitments of all the Lenders. 
The initial amount of the Aggregate Revolving Commitments in effect on
the Closing Date is ONE HUNDRED TWENTY MILLION DOLLARS ($120,000,000).


 


“Aggregate Tranche A Revolving Commitments”
means the Tranche A Revolving Commitments of all the Tranche A Lenders.  The initial amount of the Aggregate Tranche A
Revolving Commitments in effect on the Closing Date is NINETY MILLION DOLLARS
($90,000,000).


 


 





















 


“Aggregate Tranche B Revolving Commitments”
means the Tranche B Revolving Commitments of all the Tranche B Lenders.  The initial amount of the Aggregate Tranche B
Revolving Commitments in effect on the Closing Date is THIRTY MILLION DOLLARS
($30,000,000).


 


“Agreement” means this Credit Agreement.


 


“Alternative Currency” means Euro, Sterling and each other currency (other than Dollars) that is
approved in accordance with Section 1.08.


 


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


 


“Alternative Currency Sublimit” means an amount
equal to the lesser of the Aggregate Tranche A Revolving Commitments and $50
million.  The Alternative Currency
Sublimit is part of, and not in addition to, the Aggregate Tranche A Revolving
Commitments.


 


“Applicable Percentage” means with respect to
any Lender at any time, (a) with regard
to such Lender’s Tranche A Revolving Commitment, the percentage (carried out to
the ninth decimal place) of the Aggregate Tranche A Revolving Commitments
represented by such Lender’s Tranche A Revolving Commitment at such time;
provided that if the commitment of each Lender to make Tranche A Revolving
Loans has been terminated pursuant to Section 9.02 or if the Tranche A
Aggregate Revolving Commitments have expired, then the Applicable Percentage of
each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent assignments and
(b) the percentage (carried out to the
ninth decimal place) of the Aggregate Tranche B Revolving Commitments
represented by such Lender’s Tranche B Revolving Commitment at such time; provided
that if the commitment of each Lender to make Tranche B Revolving Loans and the
obligation of the L/C Issuer to make Tranche B L/C Credit Extensions have been
terminated pursuant to Section 9.02 or if the Tranche B Aggregate
Revolving Commitments have expired, then the Applicable Percentage of each
Lender shall be determined based on the Applicable Percentage of such Lender
most recently in effect, giving effect to any subsequent assignments.  The initial Applicable Percentage of each
Lender is set forth opposite the name of such Lender on Schedule 2.01 or
in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.


 


“Applicable Rate” means, (a) with regard to Tranche A Revolving Loans, (i) for Eurocurrency Rate Loans, 1.75% per annum
and (ii) for Base Rate Loans, 0.25% per
annum, and (b) with regard to Tranche B
Revolving Loans, (i) for Eurocurrency Rate Loans, 1.50% per annum; and (ii) for
Base Rate Loans, 0.00% per annum.


 


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


 


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


 


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


 


 


2





















 


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


 


“Attributable
Indebtedness” means, on any date, (a) in respect of any Capital Lease of
any Person, the capitalized amount thereof that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP, (b) in respect
of any Synthetic Lease, the capitalized amount of the remaining lease payments
under the relevant lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were accounted for
as a Capital Lease, (c) in respect of any Securitization Transaction of any
Person, the outstanding principal amount of such financing, after taking into
account reserve accounts and making appropriate adjustments, determined by the
Administrative Agent in its reasonable judgment and (d) in the case of any Sale and Leaseback Transaction, the present value
(discounted in accordance with GAAP at the debt rate implied in the applicable
lease) of the obligations of the lessee for rental payments during the term of
such lease).


 


“Audited Financial Statements” means the
audited consolidated balance sheet of the Borrower and its Subsidiaries for the
fiscal year ended December 31, 2004, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows of the Borrower and
its Subsidiaries for such fiscal year, including the notes thereto.


 


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


 


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


 


“Base Rate” means for any day a fluctuating
rate per annum equal to the higher of (a) the Federal Funds Rate plus 0.50% and
(b) the rate of interest in effect for such day as publicly announced from time
to time by Bank of America as its “prime rate.” 
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.  Any change in the “prime rate” announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


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


 


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


 


“Borrower Materials”
has the meaning specified in Section 7.02.


 


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


 


“Business Day” means any day other than a
Saturday, Sunday or other day on which commercial banks are authorized to close
under the Laws of, or are in fact closed in, the state where the Administrative
Agent’s Office with respect to Obligations denominated in Dollars is located
and:


 


 


3





















 


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


 


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


 


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


 


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


 


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


 


“Capital Lease” means, as applied to any Person, any lease of any property by that Person as
lessee which, in accordance with GAAP, is required to be accounted for as a
capital lease on the balance sheet of that Person.


 


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


 


“Cash Equivalents” means,
as at any date, (a) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than twelve months from the date of acquisition, (b) Dollar denominated
time deposits and certificates of deposit of (i) any Lender, (ii) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial
paper rating from S&P is at least A-1 or the equivalent thereof or
from Moody’s is at least P-1 or the equivalent thereof (any such bank
being an “Approved Bank”), in each case with maturities of not more than 270
days from the date of acquisition, (c) commercial paper and variable or
fixed rate notes issued by any Approved Bank (or by the parent company thereof)
or any variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody’s and maturing within
six months of the date of acquisition, (d) repurchase agreements entered
into by any Person with a bank or trust company (including any of the Lenders)
or recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by the United
States in which such Person shall have a perfected first priority security
interest (subject to no other Liens) and having, on the date of purchase
thereof, a fair market value of at least 100% of the amount of the repurchase
obligations and (e) Investments, classified in accordance with GAAP as
current assets, in money market investment programs registered under the
Investment Company Act of 1940 which are administered by reputable financial 


 


 


4





















 


institutions having capital of at least
$500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d).


 


“Change in Law” means the occurrence, after the
date of this Agreement, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any
request, guideline or directive (whether or not having the force of law) by any
Governmental Authority.


 


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


 


(a)           any “person” or “group” (as such
terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, except that a person or group shall be deemed to have “beneficial
ownership” of all Equity Interests that such person or group has the right to
acquire (such right, an “option right”), whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly, of twenty five (25%) of the Equity Interests of the Borrower
entitled to vote for members of the board of directors or equivalent governing
body of the Borrower on a fully diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any
option right);


 


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


 


(c)           any Person or two or more Persons
acting in concert shall have acquired by contract or otherwise, or shall have
entered into a contract or arrangement that, upon consummation thereof, will
result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Borrower, or control over the Voting Stock of the Borrower on a fully-diluted
basis (and taking into account all such Voting Stock that such Person or group
has the right to acquire pursuant to any option right) representing twenty five
(25%) or more of the combined voting power of such Voting Stock.


 


“Closing Date” means the date hereof.


 


“Collateral Documents” means a collective
reference to the Pledge Agreement and other security documents as may be
executed and delivered by the Loan Parties pursuant to the terms of Section 7.14.


 


 


5





















 


“Commitment” means, as to each Lender, the Revolving
Commitment of such Lender.


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit
7.02.


 


“Consolidated
EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to Consolidated Net Income for such period plus
the following to the extent deducted in calculating such Consolidated Net
Income: (a) Consolidated Interest Charges for such period, (b) the provision
for federal, state, local and foreign income taxes payable by the Borrower and
its Subsidiaries for such period, and (c) the amount of depreciation and
amortization expense for such period, all as determined in accordance with
GAAP.


 


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


 


“Consolidated
Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (i) all
interest, premium payments, debt discount, fees, charges and related expenses
in connection with borrowed money (including capitalized interest) or in
connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, plus (ii) the
portion of rent expense with respect to such period under Capital Leases that
is treated as interest in accordance with GAAP plus (iii) the implied
interest component of Synthetic Leases with respect to such period.


 


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


 


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


 


“Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.  “Controlling”
and “Controlled” have meanings correlative thereto.  Without limiting the generality of the
foregoing, a Person shall be deemed to be Controlled by another Person if such
other Person possesses, directly or indirectly, power to vote 5% or more of the
securities having ordinary voting power for the election of directors, managing
general partners or the equivalent.


 


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


 


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


 


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


 


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


 


 


6





















 


Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws and (b) when used with
respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus
2% per annum.


 


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


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition of any Property (including the Equity Interests of any Subsidiary)
by the Borrower or any Subsidiary, including any Sale and Leaseback Transaction
and any sale, assignment, transfer or other disposal, with or without recourse,
of any notes or accounts receivable or any rights and claims associated
therewith, but excluding (a) the sale, lease, license, transfer or other
disposition of inventory in the ordinary course of business of the Borrower and
its Subsidiaries, (b) the sale, lease, license, transfer or other disposition
of machinery and equipment no longer used or useful in the conduct of business
of the Borrower and its Subsidiaries, (c) any sale, lease, license, transfer or
other disposition of Property by the Borrower or any Subsidiary to any Loan
Party and (d) any sale, lease, license, transfer or other disposition of
Property by any Foreign Subsidiary to another Foreign Subsidiary.


 


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


 


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


 


“Domestic
Subsidiary” means any Subsidiary that is organized under the laws of any
state of the United States or the District of Columbia.


 


“Eligible Assignee”
means (a) a Lender; (b) an Affiliate of a Lender; (c) an Approved Fund; and (d)
any other Person (other than a natural person) approved by (i) the
Administrative Agent (and in the case of an assignment of a Tranche B Revolving
Commitment, the L/C Issuer and the Swing Line Lender), and (ii) unless an Event
of Default has occurred and is continuing, the Borrower (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding
the foregoing, “Eligible Assignee” shall not include the Borrower or any of the
Borrower’s Affiliates or Subsidiaries; and provided  further, however,
that in the case of an assignment of a Tranche A Revolving Commitment, an
Eligible Assignee shall include only a Lender, an Affiliate of a Lender or
another Person, which, through its Lending Offices, is capable of lending the
applicable Alternative Currencies to the Borrower without the imposition of any
additional Indemnified Taxes.


 


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


 


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


 


 


7





















 


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


 


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


 


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


 


“Equity Issuance” means any issuance by the Borrower or any
Domestic Subsidiary to any Person of its Equity Interests, other than (a) any
issuance of its Equity Interests pursuant to the exercise of options or
warrants, (b) any issuance of its Equity Interests pursuant to the conversion
of any debt securities to equity or the conversion of any class equity
securities to any other class of equity securities, (c) any issuance of options
or warrants relating to its Equity Interests, and (d) any issuance by the
Borrower of its Equity Interests as consideration for an Acquisition.  The term “Equity Issuance” shall not be
deemed to include any Disposition.


 


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


 


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


 


“ERISA Event” means (a) a Reportable Event with
respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA
Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan
year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations that is treated
as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of
a notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension
Plan or Multiemployer Plan; or (f) the imposition of 


 


 


8





















 


any liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Excluded Taxes” means, with respect to the Administrative
Agent, any Lender, the L/C Issuer or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) taxes
imposed on or measured by its overall net income (however denominated), and
franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) 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 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 11.13), any withholding tax that is imposed
on amounts payable to such Foreign Lender at the time such Foreign Lender
becomes a party hereto (or designates a new Lending Office) or is attributable
to such Foreign Lender’s failure or inability (other than as a result of a
Change in Law) to comply with Section 3.01(e), except 


 


 


9





















 


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 3.01(a).


 


“Existing Letters of Credit” means those letters of credit
outstanding on the Closing Date and identified on Schedule 2.03.


 


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


 


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


 


“Fee Letter” means the letter agreement, dated
October 12, 2005 among the Borrower and the Administrative Agent.


 


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


 


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


 


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


 


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


 


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


 


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


 


(b)           all
purchase money Indebtedness;


 


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


 


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


 


 


10





















 


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


 


(f)            the
Attributable Indebtedness of Capital Leases, Sale and Leaseback Transactions
and Synthetic Leases;


 


(g)           the
Attributable Indebtedness of Securitization Transactions;


 


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


 


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


 


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


 


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


 


For purposes hereof, the amount of any direct
obligation arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments
shall be the maximum amount available to be drawn thereunder.


 


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


 


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


 


“Guarantee” means, as to any Person, (a) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation payable or
performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person,
direct or indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation, (ii) to purchase
or lease property, securities or services for the purpose of assuring the
obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
or 


 


 


11





















 


level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness or other obligation, or (iv) entered
into for the purpose of assuring in any other manner the obligee in respect of
such Indebtedness or other obligation of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part),
or (b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person (or any right, contingent or otherwise, of
any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed
to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith.  The term “Guarantee” as a verb
has a corresponding meaning.


 


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


 


“Guarantors” means each Domestic Subsidiary of the Borrower identified as a “Guarantor” on
the signature pages hereto and each other Person that joins as a Guarantor
pursuant to Section 7.12, together with their successors and permitted
assigns.


 


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


 


“Honor Date” has the meaning set forth in Section
2.03(c).


 


“Immaterial Domestic Subsidiary” means any
Domestic Subsidiary that is not a Material Domestic Subsidiary.


 


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


 


(a)           all
Funded Indebtedness;


 


(b)           the
Swap Termination Value of any Swap Contract;


 


(c)           all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and


 


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


 


“Indemnified Taxes”
means Taxes other than Excluded Taxes.


 


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


 


“Information” has
the meaning specified in Section 11.07.


 


 


12





















 


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


 


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


 


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


 


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


 


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


 


“Interim Financial Statements” has the meaning
set forth in Section 5.01(c).


 


“Internal Control Event” means a material
weakness in, or fraud that involves management or other employees who have a
significant role in, the Borrower’s internal controls over financial reporting,
in each case as described in the Securities Laws.


 


“Internal Revenue Code”
means the Internal Revenue Code of 1986.


 


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


 


“IRS” means the
United States Internal Revenue Service.


 


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


 


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


 


 


13





















 


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


 


“Laws” means, collectively, all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration
thereof, and all applicable administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.


 


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


 


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


 


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


 


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


 


“L/C Obligations” means, as at any date of
determination, the aggregate amount available to be drawn under all outstanding
Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings.  For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06.  For all purposes of this Agreement, if on any
date of determination a Letter of Credit has expired by its terms but any
amount may still be drawn thereunder by reason of the operation of Rule 3.14 of
the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.


 


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


 


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


 


“Letter of Credit” means any standby letter of credit issued hereunder and shall include the
Existing Letters of Credit.  All Letters
of Credit shall be issued in Dollars.


 


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


 


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


 


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


 


 


14





















 


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


 


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


 


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


 


“Loan Documents” means this Agreement, each
Note, each Issuer Document, each Joinder Agreement, the Collateral Documents
and the Fee Letter.


 


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


 


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


 


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


 


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


 


“Material Domestic Subsidiary” means any
Domestic Subsidiary if (a) the revenue of
such Domestic Subsidiary exceeds 2% of the revenue of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP or (b) the book value of the assets of such
Domestic Subsidiary exceeds 2% of the book value of the assets of the Borrower
and its Subsidiaries on a consolidated basis determined in accordance with
GAAP.


 


“Material Foreign Subsidiary” means any Foreign
Subsidiary if (a) the revenue of such Foreign
Subsidiary exceeds 2% of the revenue of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP or (b) the book value of the assets of such Foreign
Subsidiary exceeds 2% of the book value of the assets of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.


 


“Material Indebtedness” means any Indebtedness
(other than Indebtedness hereunder and Indebtedness under Swap Contracts)
having an aggregate principal amount (including undrawn committed or available
amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount.


 


 


15





















 


“Material Subsidiary” means any Material
Domestic Subsidiary or any Material Foreign Subsidiary.


 


“Maturity Date” means
October 25, 2006 (being the date 364 days after the Closing Date).


 


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


 


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


 


“Net Cash Proceeds” means
the aggregate cash or Cash Equivalents proceeds received by the Borrower or any
Subsidiary in respect of any Disposition or Equity Issuance net of (a) direct
costs incurred in connection therewith (including, without limitation, legal,
accounting and investment banking fees, and sales commissions), (b) taxes paid
or payable as a result thereof and (c) in the case of any Disposition, the
amount necessary to retire any Indebtedness secured by a Permitted Lien
(ranking senior to any Lien of the Administrative Agent) on the related property; it being understood that “Net Cash Proceeds”
shall include, without limitation, any cash or Cash Equivalents received upon
the sale or other disposition of any non-cash consideration received by
the Borrower or any Subsidiary in any Disposition or Equity Issuance.


 


“Note” means, collectively, the Tranche A
Revolving Notes, the Tranche B Revolving Notes and the Swing Line Note.


 


“Obligations” means all advances to, and debts,
liabilities, obligations, covenants and duties of, any Loan Party arising under
any Loan Document or otherwise with respect to any Loan or Letter of Credit,
whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against
any Loan Party or any Affiliate thereof of any proceeding under any Debtor
Relief Laws naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding. The
foregoing shall also include (a) all obligations under any Swap Contract
between any Loan Party and any Lender or Affiliate of a Lender that is
permitted to be incurred pursuant to Section 8.03(d) and (b) all
obligations under any Treasury Management Agreement between any Loan Party and
any Lender or Affiliate of a Lender.


 


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


 


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


 


 


16





















 


“Outstanding Amount” means (i) with respect to
any Loans on any date, the Dollar Equivalent amount of the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of such Loans occurring on such date; and (ii) with
respect to any L/C Obligations on any date, the amount of such L/C Obligations
on such date after giving effect to any L/C Credit Extension occurring on such
date and any other changes in the aggregate amount of the L/C Obligations as of
such date, including as a result of any reimbursements by the Borrower of
Unreimbursed Amounts.


 


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


 


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


 


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


 


“PBGC” means the
Pension Benefit Guaranty Corporation or any successor thereto.


 


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


 


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


 


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


 


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


 


“Platform” has the meaning specified in Section
7.02.


 


“Pledge Agreement” means the pledge agreement
dated as of the Closing Date executed in favor of the Administrative Agent by
each of the Loan Parties.


 


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


 


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


 


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


 


 


17





















 


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


 


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


 


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


 


“Required Lenders” means, at any time, Lenders
holding in the aggregate more than 50% of (a) the unfunded Commitments and
the outstanding Loans, L/C Obligations and participations therein or
(b) if the Commitments have been terminated, the outstanding Loans, L/C
Obligations and participations therein. 
The unfunded Commitments of, and the outstanding Loans held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


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


 


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


 


“Revaluation Date” means each of the
following:  (i) each date of a Borrowing
of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each
date of a continuation of a Eurocurrency Rate Loan denominated in an
Alternative Currency pursuant to Section 2.02, and (iii) such
additional dates as the Administrative Agent shall determine or the Tranche A
Required Lenders shall require.


 


“Revolving Commitments” means the Tranche A
Revolving Commitment and Tranche B Revolving Commitment.


 


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


 


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


 


“Sale and Leaseback Transaction” means, with
respect to the Borrower or any Subsidiary, any arrangement, directly or
indirectly, with any Person whereby the Borrower or such Subsidiary shall sell
or transfer any property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property being sold or transferred.


 


“Same Day Funds” means (a) with respect to
disbursements and payments in Dollars, immediately available funds, and (b)
with respect to disbursements and payments in an Alternative Currency, same day
or other funds as may be determined by the Administrative Agent to be customary
in 


 


 


18





















 


the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.


 


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


 


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


 


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


 


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


 


“Solvent” or “Solvency”
means, with respect to any Person as of a particular date, that on such date
(a) such Person is able to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the ordinary course of
business, (b) 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 in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person’s property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which such Person is engaged or is to engage, (d)
the fair value of the property of such Person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured.  In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be computed
at the amount which, in light of all the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.


 


“Spot Rate” for a currency means the rate
determined by the Administrative Agent to be the rate quoted as the spot rate
for the purchase of such currency with another currency through its principal
foreign exchange trading office at approximately 11:00 a.m. on the date
two Business Days prior to the date as of which the foreign exchange
computation is made; provided that the
Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Administrative Agent
does not have as of the date of determination a spot buying rate for any such
currency.


 


“Sterling” means the lawful currency of the
United Kingdom.


 


“Subsidiary” of a Person means a corporation,
partnership, joint venture, limited liability company or other business entity
of which a majority of the shares of Voting Stock is at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Borrower.


 


 


19





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Threshold Amount”
means $5,000,000.


 


 


20





















 


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


 


“Tranche A Lenders” means, at any time, Lenders
holding Tranche A Revolving Commitments or an outstanding Tranche A Revolving
Loans.


 


“Tranche A Required Lenders” means, at any
time, Lenders holding in the aggregate more than 50% of (a) the unfunded
Tranche A Revolving Commitments and the outstanding Tranche A Revolving Loans
or (b) if the Tranche A Revolving Commitments have been terminated, the
outstanding Tranche A Revolving Loans. 
The unfunded Tranche A Revolving Commitments of, and the outstanding
Tranche A Revolving Loans held or deemed held by, any Defaulting Lender shall
be excluded for purposes of making a determination of Tranche A Required
Lenders.


 


“Tranche A Revolving Commitment” means, as to
each Lender, its obligation to make Tranche A Revolving Loans to the Borrower
pursuant to Section 2.01, in an aggregate principal amount at any one
time outstanding not to exceed the Dollar amount set forth opposite such Lender’s
name on Schedule 2.01 or in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be
adjusted from time to time in accordance with this Agreement.


 


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


 


“Tranche A Revolving Note” has the meaning
specified in Section 2.11.


 


“Tranche B Lenders” means, at any time, Lenders
holding Tranche B Revolving Commitments or an outstanding Tranche B Revolving
Loans.


 


“Tranche B Required Lenders” means, at any
time, Lenders holding in the aggregate more than 50% of (a) the unfunded
Tranche B Revolving Commitments and the outstanding Tranche B Revolving Loans,
Swing Line Loans, L/C Obligations and participations therein or (b) if the
Tranche B Revolving Commitments have been terminated, the outstanding Tranche B
Revolving Loans, Swing Line Loans, L/C Obligations and participations
therein.  The unfunded Tranche B
Revolving Commitments of, and the outstanding Tranche B Revolving Loans, Swing
Line Loans, L/C Obligations and participations therein, held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination
of Tranche B Required Lenders.


 


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


 


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


 


“Tranche B Revolving Note” has the meaning specified
in Section 2.11.


 


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


 


 


21





















 


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


 


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


 


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


 


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


 


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


 


“Walden University” means Walden University,
Inc., a Florida corporation.


 


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


 


1.02         Other Interpretive Provisions.


 


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


 


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


 


 


22





















 


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


 


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


 


1.03         Accounting Terms.


 


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


 


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


 


1.04         Rounding.


 


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


 


1.05         Times of Day.


 


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


 


1.06         Letter of Credit Amounts.


 


Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such
Letter of Credit in effect at such time; provided, however, that
with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases
in the stated amount thereof, the amount of such Letter of Credit shall be 


 


 


23





















 


deemed to be the maximum stated amount of such Letter of Credit after
giving effect to all such increases, whether or not such maximum stated amount
is in effect at such time.


 


1.07         Exchange Rates; Currency Equivalents.


 


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


 


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


 


1.08         Additional Alternative
Currencies.


 


(a)           The Borrower may from time to time
request that Eurocurrency Rate Loans be made in a currency other than those
specifically listed in the definition of “Alternative Currency;” provided
that such requested currency is a lawful currency (other than Dollars) that is
readily available and freely transferable and convertible into Dollars.  In the case of any such request, such request
shall be subject to the approval of the Administrative Agent and the Tranche A
Lenders.


 


(b)           Any such request shall be made to the
Administrative Agent not later than 11:00 a.m., ten (10) Business Days
prior to the date of the desired Credit Extension (or such other time or date
as may be agreed by the Administrative Agent in its sole discretion).  The Administrative Agent shall promptly
notify each Tranche A Lender of such request. 
Each Tranche A Lender shall notify the Administrative Agent, not later
than 11:00 a.m., ten Business Days after receipt of such request whether
it consents, in its sole discretion, to the making of Eurocurrency Rate Loans
in such requested currency.


 


(c)           Any failure by a Tranche A Lender to
respond to such request within the time period specified in the preceding
sentence shall be deemed to be a refusal by such Lender to permit Eurocurrency
Rate Loans to be made in such requested currency.  If the Administrative Agent and all the
Tranche A Lenders consent to making Eurocurrency Rate Loans in such requested
currency, the Administrative Agent shall so notify the Borrower and such
currency shall thereupon be deemed for all purposes to be an Alternative
Currency hereunder for purposes of any Borrowings of Eurocurrency Rate
Loans.  If the Administrative Agent shall
fail to obtain consent to any request for an additional currency under this Section 1.05,
the Administrative Agent shall promptly so notify the Borrower.


 


1.09         Change of Currency.


 


(a)           Each obligation of the Borrower to
make a payment denominated in the national currency unit of any member state of
the European Union that adopts the Euro as its lawful currency after the date
hereof shall be redenominated into Euro at the time of such adoption (in
accordance with the EMU Legislation). 
If, in relation to the currency of any such member state, the basis of
accrual of interest 


 


 


24





















 


expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis shall
be replaced by such convention or practice with effect from the date on which
such member state adopts the Euro as its lawful currency; provided that
if any Borrowing in the currency of such member state is outstanding
immediately prior to such date, such replacement shall take effect, with
respect to such Borrowing, at the end of the then current Interest Period.


 


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


 


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


 


ARTICLE II



THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01         Revolving Loans.


 


(a)           Subject to the terms and conditions
set forth herein, each Tranche A Lender severally agrees to make loans (each
such loan, a “Tranche A Revolving Loan”) to the Borrower in Dollars or
one or more Alternative Currencies from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of such Lender’s Tranche A Revolving Commitment; provided,
however, that after giving effect to any Borrowing of Tranche A
Revolving Loans, (i) the Total Revolving Outstandings shall not exceed the
Aggregate Revolving Commitments, (ii) the aggregate Outstanding Amount of the
Tranche A Revolving Loans of any Tranche A Lender shall not exceed such Lender’s
Tranche A Revolving Commitment, (iii) the aggregate Outstanding Amount of all
Tranche A Revolving Loans shall not exceed the Aggregate Tranche A Revolving
Commitment and (iv) the aggregate Outstanding Amount of all Tranche A Revolving
Loans denominated in Alternative Currencies shall not exceed the Alternative
Currency Sublimit.  Within the limits of
each Tranche A Lender’s Tranche A Revolving Commitment, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section
2.01(a), prepay under Section 2.05, and reborrow under this Section
2.01(a).  Tranche A Revolving Loans
may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein,
provided, however, all Borrowings made on the Closing Date shall be made as
Base Rate Loans.


 


(b)           Subject to the terms and conditions
set forth herein, each Tranche B Lender severally agrees to make loans (each
such loan, a “Tranche B Revolving Loan” and together with the Tranche A
Revolving Loan, the “Revolving Loans”) to the Borrower in Dollars from
time to time on any Business Day during the Availability Period in an aggregate
amount not to exceed at any time outstanding the amount of such Lender’s
Tranche B Revolving Commitment; provided, however, that after
giving effect to any Borrowing of Tranche B Revolving Loans, (i) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments,
(ii) the aggregate Outstanding Amount of the Tranche B Revolving Loans of any
Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Commitment and (iii) the aggregate Outstanding Amount of all Tranche
B Revolving Loans, Swing Line Loans and L/C Obligations shall not exceed the 


 


 


25





















 


Aggregate Tranche B Revolving Commitment.  Within the limits of each Tranche B Lender’s
Tranche B Revolving Commitment, and subject to the other terms and conditions
hereof, the Borrower may borrow under this Section 2.01(b), prepay under
Section 2.05, and reborrow under this Section 2.01(b).  Tranche B Revolving Loans may be Base Rate
Loans or Eurocurrency Rate Loans, as further provided herein, provided,
however, all Borrowings made on the Closing Date shall be made as Base Rate
Loans.


 


2.02         Borrowings, Conversions and
Continuations of Revolving Loans.


 


(a)           Each Borrowing, each conversion of
Revolving Loans from one Type to the other, and each continuation of
Eurocurrency Rate Loans shall be made upon the Borrower’s irrevocable notice to
the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurocurrency Rate Loans denominated in Dollars or of any
conversion of Eurocurrency Rate Loans denominated in Dollars to Base Rate Loans,
(ii) four Business Days prior to the requested date of any Borrowing or continuation of
Eurocurrency Rate Loans denominated in Alternative Currencies, and
(iii) on the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written
Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower.  Each Borrowing of, conversion
to or continuation of Eurocurrency Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof.  Each such Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Revolving Loans from one Type to the
other, or a continuation of Eurocurrency Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Revolving Loans to
be borrowed, converted or continued, (iv) the Type of Revolving Loans to
be borrowed or to which existing Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, and
(vi) the currency of the Revolving Loans to be borrowed.  If the Borrower fails to specify a currency
in a Loan Notice requesting a Borrowing, then the Revolving Loans so requested
shall be made in Dollars.  If the
Borrower fails to specify a Type of Revolving Loan in a Loan Notice or if the
Borrower fails to give a timely notice requesting a conversion or continuation,
then the applicable Loans shall be made as, or converted to, Base Rate Loans; provided,
however, that in the case of a failure to timely request a continuation
of Revolving Loans denominated in an Alternative Currency, such Revolving Loans
shall be continued as Eurocurrency Rate Loans in their original currency with
an Interest Period of one month.  Any
automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable
Eurocurrency Rate Loans.  If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate
Loans in any such Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.  No Revolving Loan may be converted into or
continued as a Revolving Loan denominated in a different currency, but instead
must be prepaid in the original currency of such Revolving Loan and reborrowed
in the other currency.


 


(b)           Following receipt of a Loan Notice,
the Administrative Agent shall promptly notify each Lender of the amount (and
currency) of its Applicable Percentage of the applicable Revolving Loans, and
if no timely notice of a conversion or continuation is provided by the
Borrower, the Administrative Agent shall notify each Lender of the details of
any automatic conversion to Base Rate Loans or continuation of Loans
denominated in a currency other than Dollars, in each case as described in the
preceding subsection.  In the case of a
Borrowing, each Lender shall make the amount of its Revolving Loan available to
the Administrative Agent in Same Day Funds at the Administrative Agent’s Office
for the applicable currency not later than 1:00 p.m., in the case of any
Revolving Loan denominated in Dollars, 


 


 


26





















 


and not later than the Applicable Time specified by the Administrative
Agent in the case of any Revolving Loan in an Alternative Currency, in each
case on the Business Day specified in the applicable Loan Notice.  Upon satisfaction of the applicable
conditions set forth in Section 5.02 (and, if such Borrowing is the
initial Credit Extension, Section 5.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account
of the Borrower on the books of Bank of America with the amount of such funds
or (ii) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Borrower; provided, however, that if, on the date
the Loan Notice with respect to such Borrowing denominated in Dollars is given
by the Borrower, there are L/C Borrowings outstanding, then the proceeds of
such Borrowing, shall be applied to the payment in full of any such L/C
Borrowings.


 


(c)           Except as otherwise provided herein,
a Revolving Loan made as a Eurocurrency Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurocurrency Rate
Loan.  During the existence of a Default,
(i) no Revolving Loans may be requested
as, converted to or continued as Eurocurrency Rate Loans without the consent of
the Required Lenders, (ii) the Required
Lenders may demand that any or all of the then outstanding Eurocurrency Rate
Loans be converted immediately to Base Rate Loans, and (iii) the Tranche A Required Lenders may demand that any or all of
the then outstanding Eurocurrency Rate Loans denominated in an Alternative
Currency be prepaid, or redenominated into Dollars in the amount of the Dollar
Equivalent thereof, on the last day of the then current Interest Period with
respect thereto.


 


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


 


(e)           After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Revolving Loans as the same Type, there shall
not be more than ten (10) Interest Periods in effect.


 


2.03         Letters of Credit.


 


(a)           The
Letter of Credit Commitment.


 


(i)            Subject to the
terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance
upon the agreements of the Tranche B Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the Closing
Date until the Letter of Credit Expiration Date, to issue Letters of Credit in
Dollars for the account of the Borrower or any of its Subsidiaries, and to
amend or extend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of Credit;
and (B) the Tranche B Lenders severally agree to participate in Letters of
Credit issued for the account of the Borrower or its Subsidiaries and any
drawings thereunder; provided that after giving effect to any L/C Credit
Extension with respect to any Letter of Credit, (w) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (x) the
aggregate Outstanding Amount of the Tranche B Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Tranche B
Revolving Commitment, (y) the aggregate Outstanding Amount of all Tranche B
Revolving Loans, Swing Line Loans and L/C Obligations shall not exceed the 


 


 


27





















 


aggregate Tranche B Revolving Commitment and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit.  Each request by the Borrower
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower
may, during the foregoing period, obtain Letters of Credit to replace Letters
of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall be deemed to have been
issued pursuant hereto, and from and after the Closing Date shall be subject to
and governed by the terms and conditions hereof.


 


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


 


(A)           subject to Section
2.03(b)(iii), the expiry date of such requested Letter of Credit would
occur more than twelve months after the date of issuance or last extension,
unless the Tranche B Required Lenders have approved such expiry date; or


 


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


 


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


 


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


 


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


 


(C)           except as
otherwise agreed by the Administrative Agent and the L/C Issuer, such Letter of
Credit is in an initial stated amount less than $25,000;


 


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


 


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


 


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


 


 


28





















 


such Tranche B Lender to eliminate the L/C Issuer’s
risk with respect to such Tranche B Lender.


 


(iv)          The L/C Issuer
shall not amend any Letter of Credit if the L/C Issuer would not be permitted
at such time to issue such Letter of Credit in its amended form under the terms
hereof.


 


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


 


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


 


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


 


(i)            Each Letter of
Credit shall be issued or amended, as the case may be, upon the request of the
Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent)
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower.  Such Letter of Credit Application must be
received by the L/C Issuer and the Administrative Agent not later than 11:00
a.m. at least five (5) Business Days (or such later date and time as the
Administrative Agent and the L/C Issuer may agree in a particular instance in
their sole discretion) prior to the proposed issuance date or date of
amendment, as the case may be.  In the
case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer may reasonably
require.  In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the L/C Issuer (A)
the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the L/C Issuer may reasonably require.  Additionally, the Borrower shall furnish to
the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as the L/C Issuer or the
Administrative Agent may require.


 


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


 


 


29





















 


received written notice from any Lender, the
Administrative Agent or any Loan Party, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit,
that one or more applicable conditions contained in Article V shall not
be satisfied, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
Borrower or the applicable Subsidiary or enter into the applicable amendment,
as the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Tranche B
Lender shall be deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the L/C Issuer a risk participation in such Letter of Credit
in an amount equal to the product of such Tranche B Lender’s Applicable
Percentage times the amount of such Letter of Credit.


 


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


 


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


 


(c)           Drawings
and Reimbursements; Funding of Participations.


 


(i)            Upon receipt
from the beneficiary of any Letter of Credit of any notice of drawing under
such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 11:00 a.m. on the date of any payment by the L/C Issuer under a Letter of
Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing.  If the Borrower
fails to so reimburse the L/C Issuer by such time, the Administrative Agent
shall promptly notify each Tranche B Lender of the Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of
such Tranche B Lender’s Applicable Percentage thereof.  In such event, the Borrower shall be deemed
to have requested a Borrowing of a Tranche B Revolving Loan that is a Base Rate
Loan to be disbursed 


 


 


30





















 


on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the
conditions set forth in Section 5.02 (other than the delivery of a Loan
Notice) and provided that, after giving effect to such Borrowing, (x) the Total
Revolving Outstandings shall not exceed the Aggregate Revolving Commitments and
(y) the Outstanding Amount of all Tranche B Revolving Loans and L/C Obligations
shall not exceed the Aggregate Tranche B Revolving Commitment.  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by
telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding
effect of such notice.


 


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


 


(iii)          With respect to
any Unreimbursed Amount that is not fully refinanced by a Borrowing of a
Tranche B Revolving Loan that is a Base Rate Loan because the conditions set
forth in Section 5.02 cannot be satisfied or for any other reason, the
Borrower shall be deemed to have incurred from the L/C Issuer an L/C Borrowing
in the amount of the Unreimbursed Amount that is not so refinanced, which L/C
Borrowing shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate.  In
such event, each Tranche B Lender’s payment to the Administrative Agent for the
account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall be
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Tranche B Lender in satisfaction of its
participation obligation under this Section 2.03.


 


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


 


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


 


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



 


 


31





















 


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


 


(d)           Repayment
of Participations.


 


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


 


(ii)           If any payment
received by the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.05 (including pursuant to any
settlement entered into by the L/C Issuer in its discretion), each Tranche B
Lender shall pay to the Administrative Agent for the account of the L/C Issuer
its Applicable Percentage thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Tranche B Lender, at a rate per annum equal to the Overnight
Rate from time to time in effect.  The
obligations of the Tranche B Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


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


 


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


 


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


 


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


 


 


32





















 


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


 


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


 


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


 


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


 


(g)           Cash Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason 


 


 


33





















 


remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 9.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section
2.03, Section 2.05 and Section 9.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance satisfactory to the Administrative Agent
and the L/C Issuer (which documents are hereby consented to by the
Lenders).  Derivatives of such term have
corresponding meanings.  The Borrower
hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Tranche B Lenders, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.


 


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


 


(i)            Letter of Credit Fees.  The Borrower shall pay to the Administrative
Agent for the account of each Tranche B Lender in accordance with its
Applicable Percentage a Letter of Credit fee (the “Letter of Credit Fee”)
for each Letter of Credit equal to 1.50% per annum times the daily
maximum amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be
(i) computed on a quarterly basis in arrears and (ii) due and payable on
the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter
on demand.  Notwithstanding anything to
the contrary contained herein, upon the
request of the Required Lenders while any Event of Default exists, all Letter
of Credit Fees shall accrue at the Default Rate.


 


(j)            Documentary and Processing
Charges Payable to L/C Issuer. The Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer
relating to letters of credit as from time to time in effect.  Such customary fees and standard costs and
charges are due and payable on demand and are nonrefundable.


 


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


 


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


 


2.04         Swing Line Loans.


 


(a)           Swing Line Facility.  Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees, in reliance upon the agreements of the other
Tranche B Lenders set forth in this Section 2.04,
to make loans (each such loan, a “Swing Line Loan”) to the Borrower in
Dollars from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, 


 


 


34





















 


when aggregated with the Applicable Percentage of the Outstanding
Amount of Tranche B Revolving Loans and L/C Obligations of the Swing Line
Lender in its capacity as a Tranche B Revolving Lender may exceed the amount of
such Lender’s Tranche B Revolving Commitment; provided, however,
that after giving effect to any Swing Line Loan, (x) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, (y) the
aggregate Outstanding Amount of the Tranche B Revolving Loans of any Lender, plus
such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Tranche B
Revolving Commitment and (z) the aggregate Outstanding Amount of all Tranche B
Revolving Loans, Swing Line Loans and L/C Obligations shall not exceed the
aggregate Tranche B Revolving Commitment, and provided, further,
that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan.  Within
the foregoing limits, and subject to the other terms and conditions hereof, the
Borrower may borrow under this Section 2.04, prepay under Section
2.05, and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Tranche B Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender
a risk participation in such Swing Line Loan in an amount equal to the product
of such Tranche B Lender’s Applicable Percentage times the amount of
such Swing Line Loan.


 


(b)           Borrowing Procedures.  Each Borrowing of Swing Line Loans shall be
made upon the Borrower’s irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to be borrowed,
which shall be a minimum principal amount of $50,000 and integral multiples of
$50,000 in excess thereof, and (ii) the requested borrowing date, which shall
be a Business Day.  Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower.  Promptly after receipt by the Swing Line
Lender of any telephonic Loan Notice, the Swing Line Lender will confirm with
the Administrative Agent (by telephone or in writing) that the Administrative
Agent has also received such Loan Notice and, if not, the Swing Line Lender
will notify the Administrative Agent (by telephone or in writing) of the contents
thereof.  Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of the
proposed Borrowing of Swing Line Loans (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that one or
more of the applicable conditions specified in Article V is not then
satisfied, then, subject to the terms and conditions hereof, the Swing Line
Lender will, not later than 3:00 p.m. on the borrowing date specified in such
Loan Notice, make the amount of its Swing Line Loan available to the
Borrower.  Notwithstanding the foregoing, however, in
the event that an “auto borrow” or “zero balance” or similar arrangement shall
then be in place with the Swing Line Lender, the Borrower shall request Swing
Line Loans pursuant to such alternative notice arrangements, if any, provided
thereunder or in connection therewith, and each Swing Line Loan advance shall
be in such minimum amounts, if any, provided by such arrangement.


 


(c)           Refinancing of Swing Line Loans.


 


(i)            The Swing Line Lender at any time in its sole and
absolute discretion may request, on behalf of the Borrower (which hereby
irrevocably requests and authorizes the Swing Line Lender to so request on its
behalf), that each Tranche B Lender make a Tranche B Revolving Loan that is a
Base Rate Loan in an amount equal to such Tranche B Lender’s Applicable
Percentage of the amount of Swing Line Loans then outstanding.  Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of Section 2.02, without regard to the
minimum 


 


 


35





















 


and multiples
specified therein for the principal amount of Base Rate Loans, but subject to
the conditions set forth in Section 5.02 (other than the delivery of a
Loan Notice).  The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Loan Notice promptly
after delivering such notice to the Administrative Agent.  Each Tranche B Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Loan Notice
available to the Administrative Agent in Same Day Funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Loan Notice, whereupon, subject to Section
2.04(c)(ii), each Tranche B Lender that so makes funds available shall be
deemed to have made a Tranche B Revolving Loan that is a Base Rate Loan to the
Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the Swing Line
Lender.


 


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


 


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


 


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


 


(d)           Repayment
of Participations.


 


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


 


 


36





















 


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


 


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


 


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


 


2.05         Prepayments.


 


(a)           Voluntary Prepayments 


 


(i)            Revolving
Loans.  The Borrower may, upon notice
to the Administrative Agent, at any time or from time to time voluntarily
prepay Revolving Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m.  (A) three
Business Days prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Dollars, (B) four Business Days prior to any date of prepayment
of Eurocurrency Rate Loans denominated in Alternative Currencies, and
(C) on the date of prepayment of Base Rate Loans; (ii) any prepayment
of Eurocurrency Rate Loans denominated in Dollars shall be in a principal
amount of $1,000,000 or a whole multiple of $500,000 in excess thereof;
(iii) any prepayment of Eurocurrency Rate Loans denominated in Alternative
Currencies shall be in a minimum principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof; and (iv) any prepayment of Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding.  Each
such notice shall specify the date and amount of such prepayment and the
Type(s) of Loans to be prepaid and, if Eurocurrency Loans are to be prepaid,
the Interest Period(s) of such Loans. 
The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage
of such prepayment.  If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a
Eurocurrency Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


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


 


 


37





















 


on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $50,000 or a whole
multiple of $50,000 in excess thereof (or, if less, the entire principal
thereof then outstanding).  Each such
notice shall specify the date and amount of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.  Notwithstanding the foregoing, however, in the event that an “auto
borrow” or “zero balance” or similar arrangement shall then be in place with
the Swing Line Lender, the Borrower may make voluntary prepayments on Swing
Line Loans pursuant to such alternative notice arrangements and in such minimum
amounts, if any, provided thereunder or in connection therewith.


 


(b)           Mandatory Prepayments of Loans.


 


(i)            Revolving
Commitments.  If for any reason (A) the Total Revolving Outstandings at any time
exceed the Aggregate Revolving Commitments then in effect, (B) the Outstanding Amount of all Tranche A
Revolving Loans at any time exceeds the Aggregate Tranche A Revolving
Commitments then in effect, (C) the
Outstanding Amount of all Tranche B Revolving Loans and L/C Obligations at any
time exceeds the aggregate Tranche B Revolving Commitments then in effect or (D) the Outstanding Amount of the Tranche A
Revolving Loan denominated in Foreign Currency exceeds the Alternative Currency
Sublimit, the Borrower shall immediately prepay Revolving Loans and/or the
Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to
this Section 2.05(b)(i) unless after the prepayment in full of the
Revolving Loans and Swing Line Loans the Total Revolving Outstandings exceed
the Aggregate Revolving Commitments then in effect.


 


(ii)           Equity
Issuances.  Immediately upon the
receipt by the Borrower or any Domestic Subsidiary of the Net Cash Proceeds of
any Equity Issuance, the Borrower shall prepay the Tranche A Revolving Loans in
an aggregate amount equal to 100% of such Net Cash Proceeds.


 


(iii)          Application of Mandatory Prepayments.  Mandatory prepayments shall be applied first
to Base Rate Loans and then to Eurocurrency Rate Loans in direct order of
Interest Period maturities.  All
prepayments under this Section 2.05(b) shall be subject to Section
3.05, but otherwise without premium or
penalty, and shall be
accompanied by interest on the principal amount prepaid through the date of
prepayment.


 


(iv)          Eurocurrency
Prepayment Account.  If the Borrower
is required to make a mandatory prepayment of Eurocurrency Rate Loans under
this Section 2.05(b), so long as no Event of Default exists, the
Borrower shall have the right, in lieu of making such prepayment in full, to
deposit an amount equal to such mandatory prepayment with the Administrative
Agent in a cash collateral account maintained (pursuant to documentation
reasonably satisfactory to the Administrative Agent) by and in the sole
dominion and control of the Administrative Agent.  Any amounts so deposited shall be held by the
Administrative Agent as collateral for the prepayment of such Eurocurrency Rate
Loans and shall be applied to the prepayment of the applicable Eurocurrency
Rate Loans at the end of the current Interest Periods applicable thereto or,
sooner, at the election of the Administrative Agent, upon the occurrence of an
Event of Default.  At the request of the
Borrower, amounts so deposited shall be invested by the Administrative Agent in
Cash Equivalents maturing on or prior to the date or dates on which it is
anticipated that such amounts will be applied to prepay such Eurocurrency Rate
Loans; any interest earned on such Cash Equivalents will be for the account of
the Borrower and the Borrower will deposit with the Administrative Agent the
amount of any loss on any such Cash Equivalents to the extent 


 


 


38





















 


necessary in order that the amount of the prepayment
to be made with the deposited amounts may not be reduced.


 


2.06         Termination or Reduction of
Aggregate Revolving Commitments.


 


(a)           Optional Reductions.  The Borrower may, upon notice to the
Administrative Agent, terminate, or permanently reduce, the Aggregate Tranche A
Revolving Commitments, the Aggregate Tranche B Revolving Commitments or the
Aggregate Revolving Commitments; provided that (i) any such notice
shall be received by the Administrative Agent not later than 12:00 noon five
(5) Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) if, after giving
effect to any reduction of the Aggregate Tranche B Revolving Commitments, the
Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Tranche B Revolving Commitments, such sublimit shall be automatically
reduced by the amount of such excess and (iv) if, after giving effect to any
reduction of the Aggregate Tranche A Revolving Commitments, the Alternative
Currency Sublimit exceeds the amount of the Aggregate Tranche A Revolving
Commitments, such sublimit shall be automatically reduced by the amount of such
excess.  The Administrative Agent will
promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Tranche A Revolving Commitments, the Aggregate Tranche B
Revolving Commitments or the Aggregate Revolving Commitments.  Any reduction of the Aggregate Tranche A
Revolving Commitments, the Aggregate Tranche B Revolving Commitments or the
Aggregate Revolving Commitments shall be applied to the Revolving Commitment of
each Lender according to its Applicable Percentage.  All fees accrued with respect thereto until
the effective date of any termination of the Aggregate Tranche A Revolving
Commitments, the Aggregate Tranche B Revolving Commitments or the Aggregate
Revolving Commitments shall be paid on the effective date of such termination.


 


(b)           Mandatory Reductions.  The Aggregate Tranche A Revolving Commitments
shall be permanently reduced in an amount equal to the amount of Net Cash
Proceeds that is available to be applied to the prepayment of Revolving Loans,
Swing Line Loans and L/C Obligations pursuant to Section 2.05(b)(ii) and
(iii), irrespective of the Total Revolving Outstandings at such
time.  Any such reduction shall be
applied pro rata to the Aggregate Tranche A Revolving Commitments and the
Aggregate Tranche B Revolving Commitments or


 


2.07         Repayment of Loans.


 


(a)           Tranche A Revolving Loans.  The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of all Tranche A Revolving
Loans outstanding on such date.


 


(b)           Tranche B Revolving Loans.  The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of all Tranche B Revolving
Loans outstanding on such date.


 


(c)           Swing Line Loans.  The Borrower shall repay each Swing Line Loan
on the earlier to occur of (i) demand by the Swing Line Lender and (ii) the
Maturity Date.


 


2.08         Interest.


 


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


 


 


39





















 


outstanding principal amount thereof from the applicable borrowing date
at a rate per annum equal to the Base Rate plus the Applicable Rate; and
(iii) each Swing Line Loan shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate plus the Applicable Rate.


 


(b)                                 (i)            If any amount of principal of any
Loan is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum at all times
equal to the Default Rate to the fullest extent permitted by applicable Laws.


 


(ii)           If any amount (other than principal
of any Loan) payable by the Borrower under any Loan Document is not paid when
due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.


 


(iii)          Upon the request of the Required
Lenders, while any Event of Default exists, the Borrower shall pay interest on
the principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.


 


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


 


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


 


2.09         Fees.


 


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


 


(a)           Commitment Fee.  The Borrower shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee equal to the product of (i) 0.10% per annum times
(ii) the actual daily amount by which the Aggregate Tranche A Revolving Commitments
exceed the Outstanding Amount of Tranche A Revolving Loans. The commitment fee
shall accrue at all times during the Availability Period, including at any time
during which one or more of the conditions in Article V is not met, and
shall be due and payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing with the first such date to
occur after the Closing Date, and on the Maturity Date. The commitment fee
shall be calculated quarterly in arrears. 
For purposes of clarification, Swing Line Loans shall not be considered
outstanding for purposes of determining the unused portion of the Aggregate
Revolving Commitments.


 


 


40





















 


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


 


2.10         Computation of Interest and Fees.


 


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


 


2.11         Evidence of Debt.


 


(a)           The Credit
Extensions made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the
ordinary course of business.  The
accounts or records maintained by the Administrative Agent and each Lender
shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments
thereon.  Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.  Upon the
request of any Lender made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in addition to such
accounts or records.  Each such
promissory note shall (i) in the case of
Tranche A Revolving Loans, be in the form of Exhibit 2.11(a) (a “Tranche
A Revolving Note”), (ii) in the case
of Tranche B Revolving Loans, be in the form of Exhibit 2.11(b) (a “Tranche
B Revolving Note”) and (iii) in the
case of a Swing Line Loan, be in the form of Exhibit 2.11(c) (a “Swing
Line Note”).  Each Lender may attach
schedules to its Notes and endorse thereon the date, Type (if applicable),
amount and maturity of its Loans and payments with respect thereto.


 


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


 


2.12         Payments Generally; Administrative
Agent’s Clawback.


 


(a)           General.  All payments to be made by the Borrower shall
be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.  Except as
otherwise expressly provided herein and except with respect to principal of and
interest on Loans denominated in an Alternative Currency, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the 


 


 


41





















 


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


 


(b)           The Borrower authorizes the
Administrative Agent to automatically debit the Borrower’s accounts maintained
with Bank of America for payments of principal, interest, fees and expenses.


 


(c)           (i) 
Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing of
Eurocurrency Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in the
case of any Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount.  In such event, if
a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in Same Day Funds with interest thereon, for each day from
and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (A) in the case
of a payment to be made by such Lender, the Overnight Rate and (B) in the case
of a payment to be made by the Borrower, the interest rate applicable to Base
Rate Loans.  If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


(ii)           Payments by Borrower; Presumptions
by Administrative Agent.  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 L/C Issuer 


 


 


42





















 


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 L/C Issuer, as the case may be,
the amount due.  In such event, if the
Borrower has not in fact made such payment, then each of the Lenders or the L/C
Issuer, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or the L/C
Issuer, in Same Day Funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the Overnight Rate.


 


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


 


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


 


(e)           Obligations of Lenders Several.  The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and Swing Line Loans
and to make payments pursuant to Section 11.04(c) are several and not
joint.  The failure of any Lender to make
any Loan, to fund any such participation or to make any payment under Section
11.04(c) on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan, to
purchase its participation or to make its payment under Section 11.04(c).


 


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


 


2.13         Sharing of Payments by Lenders.


 


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


 


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


 


 


43





















 


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


 


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


 


ARTICLE III



TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01         Taxes.


 


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


 


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


 


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


 


(d)           Evidence of Payments.  As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by any Loan Party 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.


 


 


44





















 


(e)           Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


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


 


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


 


(ii)           duly completed
copies of Internal Revenue Service Form W-8ECI,


 


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


 


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


 


(f)            Treatment of Certain Refunds.  If the Administrative Agent, any Lender or
the L/C Issuer determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by any
Loan Party or with respect to which any Loan Party has paid additional amounts pursuant
to this Section, it shall pay to such Loan Party an amount equal to such refund
(but only to the extent of indemnity payments made, or additional amounts paid,
by such Loan Party under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that each Loan Party,
upon the request of the Administrative Agent, such Lender or the L/C Issuer,
agrees to repay the amount paid over to such Loan Party (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such
refund to such Governmental Authority. 
This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any
other information relating to its taxes that it deems confidential) to the
Borrower or any other Person.


 


 


45





















 


3.02         Illegality.


 


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


 


3.03         Inability
to Determine Rates.


 


If the Required Lenders
determine that for any reason in connection with any request for a Eurocurrency
Rate Loan or a conversion to or continuation thereof that (a) deposits
(whether in Dollars or an Alternative Currency) are not being offered to banks
in the London interbank eurodollar market for such currency for the applicable
amount and Interest Period of such Eurocurrency Rate Loan, (b) adequate
and reasonable means do not exist for determining the Eurocurrency Base Rate
for any requested Interest Period with respect to a proposed Eurocurrency Rate
Loan (whether denominated in Dollars or an Alternative Currency), or
(c) the Eurocurrency Base Rate for any requested Interest Period with
respect to a proposed Eurocurrency Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Loan, the Administrative Agent
will promptly notify the Borrower and all Lenders.  Thereafter, the obligation of the Lenders to
make or maintain Eurocurrency Rate Loans in the affected currency or currencies
shall be suspended until the Administrative Agent revokes such notice.  Upon receipt of such notice, the Borrower may
revoke any pending request for a Borrowing, conversion or continuation of
Eurocurrency Rate Loans in the affected currency or currencies or, failing
that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.


 


3.04         Increased
Costs.


 


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


 


(i)            impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except (A) any reserve requirement reflected in the
Eurocurrency Rate and (B) the
requirements of the Bank of England and the Financial Services Authority or the
European Central Bank reflected in the Mandatory Cost, other than as set forth
below) or the L/C Issuer;


 


 


46





















 


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


 


(iii)          the
Mandatory Cost, as calculated hereunder, does not represent the cost to any
Lender of complying with the requirements of the Bank of England and/or the
Financial Services Authority or the European Central Bank in relation to its
making, funding or maintaining Eurocurrency Rate Loans; or


 


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


 


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


 


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


 


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


 


(d)           Delay in
Requests.  Failure or delay on the
part of any Lender or the L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section shall not constitute a waiver of such
Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C
Issuer pursuant to the foregoing provisions of this Section for any increased
costs incurred or reductions suffered more than nine months prior to the date
that such 


 


 


47





















 


Lender or the L/C Issuer, as the case may be,
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender’s or the L/C Issuer’s intention to claim
compensation therefor (except that, if the Change in Law giving rise to such
increased costs or reductions is retroactive, then the nine-month period
referred to above shall be extended to include the period of retroactive effect
thereof).


 


3.05         Compensation
for Losses.


 


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


 


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


 


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


 


(c)           any
failure by any Borrower to make payment of any Loan denominated in an
Alternative Currency on its scheduled due date or any payment thereof in a
different currency; or


 


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


 


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


 


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


 


3.06         Mitigation
Obligations; Replacement of Lenders.


 


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


 


 


48





















 


(b)           Replacement of
Lenders.  If any Lender requests
compensation under Section 3.04, 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 3.01, the Borrower may replace
such Lender in accordance with Section 11.13.


 


3.07         Survival.


 


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


 


ARTICLE IV



GUARANTY


 


4.01         The
Guaranty.


 


Each of the Guarantors hereby jointly and severally
guarantees to each Lender, each Affiliate of a Lender that enters into a Swap
Contract or a Treasury Management Agreement with a Loan Party, and the
Administrative Agent as hereinafter provided, as primary obligor and not as
surety, the prompt payment of the Obligations in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration, as a mandatory cash
collateralization or otherwise) strictly in accordance with the terms
thereof.  The Guarantors hereby further
agree that if any of the Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise), the Guarantors will, jointly and
severally, promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of any of the
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.


 


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


 


4.02         Obligations
Unconditional.


 


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


 


 


49





















 


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


 


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


 


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


 


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


 


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


 


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


 


4.03         Reinstatement.


 


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


 


4.04         Certain
Additional Waivers.


 


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


 


 


50





















 


4.05         Remedies.


 


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


 


4.06         Rights
of Contribution.


 


The Guarantors agree among themselves that, in
connection with payments made hereunder, each Guarantor shall have contribution
rights against the other Guarantors as permitted under applicable law.  Such contribution rights shall be subordinate
and subject in right of payment to the obligations of such Guarantors under the
Loan Documents and no Guarantor shall exercise such rights of contribution
until all Obligations have been paid in full and the Commitments have
terminated.


 


4.07         Guarantee
of Payment; Continuing Guarantee.


 


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


 


ARTICLE V



CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


5.01         Conditions
of Initial Credit Extension.


 


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


 


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


 


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


 


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


 


(i)            consolidated
and consolidating financial statements of the Borrower and its Subsidiaries for
the fiscal year ended December 31, 2004, including balance sheets and income
and cash flow statements, in each case audited by independent public
accountants of recognized national standing and prepared in conformity with
GAAP; and


 


 


51





















 


(ii)           unaudited
consolidated and consolidating financial statements of the Borrower and its
Subsidiaries for the fiscal quarter ended June 30, 2005, including balance
sheets and statements of income or operations, shareholders’ equity and cash
flows (the “Interim Financial Statements”).


 


(d)           No Material Adverse Change.  There
shall not have occurred a material adverse change since December 31,
2004 in the business, assets, liabilities
(actual or contingent), operations, condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries, taken as a whole.


 


(e)           Organization
Documents, Resolutions, Etc.  Receipt
by the Administrative Agent of the following, each of which shall be originals
or facsimiles (followed promptly by originals), in form and substance
satisfactory to the Administrative Agent and its legal counsel:


 


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


 


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


 


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


 


(f)            Perfection
and Priority of Liens.  Receipt by
the Administrative Agent of all certificates evidencing any certificated Equity
Interests pledged to the Administrative Agent pursuant to the Pledge Agreement,
together with duly executed in blank, undated stock powers attached thereto
(unless, with respect to the pledged Equity Interests of any Foreign
Subsidiary, such stock powers are deemed unnecessary by the Administrative
Agent in its reasonable discretion under the law of the jurisdiction of
incorporation of such Person).


 


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


 


(h)           Deposit
Accounts.  The Borrower shall
maintain its business, cash management, operating and administrative deposit
accounts with the Administrative Agent.


 


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


 


 


52





















 


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


 


Without limiting the
generality of the provisions of Section 11.04, for purposes of
determining compliance with the conditions specified in this Section 5.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


5.02         Conditions
to all Credit Extensions.


 


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


 


(a)           The
representations and warranties of the Borrower and each other Loan Party
contained in Article VI or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects on and as of
the date of such Credit Extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.


 


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


 


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


 


(d)           In
the case of a Tranche A Revolving Loan to be denominated in an Alternative
Currency, there shall not have occurred any change in national or international
financial, political or economic conditions or currency exchange rates or
exchange controls which in the reasonable opinion of the Administrative Agent
or the Tranche A Required Lenders (in the case of any Loans to be denominated
in an Alternative Currency) would make it impracticable for such Tranche A
Revolving Loan to be denominated in the relevant Alternative Currency.


 


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


 


ARTICLE VI



REPRESENTATIONS AND WARRANTIES


 


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


 


 


53





















 


6.01         Existence,
Qualification and Power.


 


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


 


6.02         Authorization;
No Contravention.


 


The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party have been duly authorized by all necessary corporate or other
organizational action, and do not (a) contravene the terms of any of such
Person’s Organization Documents; (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to
be made under (i) any Contractual Obligation to which such Person is a party or
affecting such Person or the properties of such Person or any of its
Subsidiaries or  (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law
(including, without limitation, Regulation U or Regulation X issued by the
FRB).


 


6.03         Governmental
Authorization; Other Consents.


 


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


 


6.04         Binding
Effect.


 


Each Loan Document has been
duly executed and delivered by each Loan Party that is party thereto.  Each Loan Document constitutes a legal, valid
and binding obligation of each Loan Party that is party thereto, enforceable
against each such Loan Party in accordance with its terms.


 


6.05         Financial
Statements; No Material Adverse Effect; No Internal Control Event.


 


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


 


(b)           The Interim
Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; (ii) fairly present the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby, subject, in the case of clauses (i) and (ii), to the 


 


 


54





















 


absence of footnotes and to normal year-end
audit adjustments; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness.


 


(c)           From the date of
the Audited Financial Statements to and
including the Closing Date, there has been no Disposition by the Borrower or
any Subsidiary of any material part of the business or property of the Borrower
and its Subsidiaries, taken as a whole, and no purchase or other acquisition by
any of them of any business or property (including any Equity Interests of any
other Person) material in relation to the consolidated financial condition of
the Borrower and its Subsidiaries, taken as a whole, in each case, which is not
reflected in the foregoing financial statements or in the notes thereto and has
not otherwise been disclosed in writing to the Lenders on or prior to the
Closing Date.


 


(d)           The financial statements delivered pursuant to Section
7.01(a) and (b) have been prepared in accordance with GAAP (except as may
otherwise be permitted under Section 7.01(a) and (b)) and present
fairly (on the basis disclosed in the footnotes to such financial statements)
the consolidated and, in the case of annual financial statements delivered
pursuant to Section 7.01(a), consolidating, financial condition, results
of operations and cash flows of the Borrower and its Subsidiaries as of the
dates thereof and for the periods covered thereby.


 


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


 


(f)            Since the date
of the Audited Financial Statements, no Internal Control Event has occurred.


 


6.06         Litigation.


 


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


 


6.07         No
Default.


 


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


 


(b)           No Default has occurred and is continuing.


 


6.08         Ownership
of Property; Liens.


 


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


 


 


55





















 


6.09         Environmental
Compliance.


 


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


 


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


 


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


 


(c)           Neither
the Borrower nor any Subsidiary has received any written or verbal notice of,
or inquiry from any Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of the Facilities or the Businesses, nor does any Responsible Officer of any
Loan Party have knowledge or reason to believe that any such notice will be
received or is being threatened.


 


(d)           Hazardous Materials have not been transported or disposed of from the Facilities,
or generated, treated, stored or disposed of at, on or under any of the
Facilities or any other location, in each case by or on behalf the Borrower or
any Subsidiary in violation of, or in a manner that would be reasonably likely
to give rise to liability under, any applicable Environmental Law.


 


(e)           No
judicial proceeding or governmental or administrative action is pending or, to
the knowledge of the Responsible Officers of the Loan Parties, threatened, under any Environmental Law to which the
Borrower or any Subsidiary is or will be named as a party, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to the Borrower, any Subsidiary, the Facilities
or the Businesses.


 


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


 


6.10         Insurance.


 


The properties of the
Borrower and its Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates.


 


6.11         Taxes.


 


The Borrower and its
Subsidiaries have filed all federal, state and other material tax returns and
reports required to be filed, and have paid all federal, state and other
material taxes, assessments, fees and other governmental charges levied or
imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings 


 


 


56





















 


diligently conducted and for which adequate
reserves have been provided in accordance with GAAP.  There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.  Neither any Loan Party nor any
Subsidiary thereof is party to any tax sharing agreement.


 


6.12         ERISA
Compliance.


 


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


 


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


 


(c)           (i)  No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) no Loan Party or any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability under Title IV of ERISA with respect to any Pension
Plan (other than premiums due and not delinquent under Section 4007 of ERISA);
(iv) no Loan Party or any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) no
Loan Party or any ERISA Affiliate has engaged in a transaction that could be
subject to Section 4069 or 4212(c) of ERISA.


 


6.13         Subsidiaries.


 


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


 


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


 


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


 


 


57





















 


Affiliate of any Lender relating to
Indebtedness and within the scope of Section 9.01(e) will be margin
stock.


 


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


 


6.15         Disclosure.


 


Each Loan Party has
disclosed to the Administrative Agent and the Lenders all agreements,
instruments and corporate or other restrictions to which it or any of its
Subsidiaries is subject, and all other matters known to it, that, individually
or in the aggregate, could reasonably be expected to result in a Material
Adverse Effect.  No report, financial
statement, certificate or other information furnished (whether in writing or
orally) by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the
negotiation of this Agreement or delivered hereunder or under any other Loan
Document (in each case, as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Loan Parties represent
only that such information was prepared in good faith based upon assumptions believed
to be reasonable at the time.


 


6.16         Compliance
with Laws.


 


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


 


6.17         [RESERVED].


 


6.18         Solvency.


 


The
Loan Parties are Solvent on a consolidated basis.


 


6.19         [RESERVED].


 


6.20         Business
Locations.


 


Set forth on Schedule 6.20 is the chief executive
office location of each Loan Party as of the Closing Date.  The exact legal name and state of
organization of each Loan Party is as set forth on the signature pages hereto.


 


6.21         Brokers’
Fees.


 


Neither the Borrower nor any Subsidiary has any
obligation to any Person in respect of any finder’s, broker’s, investment
banking or other similar fee in connection with any of the transactions
contemplated under the Loan Documents.


 


 


58





















 


ARTICLE VII



AFFIRMATIVE COVENANTS


 


So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Loan Parties shall and shall cause each
Subsidiary to:


 


7.01         Financial
Statements.


 


Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:


 


(a)           as
soon as available, but in any event within ninety days after the end of each
fiscal year of the Borrower, a consolidated and consolidating balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal year, and the
related consolidated and consolidating statements of income or operations,
shareholders’ equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by (i) a report and opinion of a Registered Public Accounting Firm of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally
accepted auditing standards and applicable Securities Laws and shall not be
subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit and (ii) an
attestation report of such Registered Public Accounting Firm as to the
Borrower’s internal controls pursuant to Section 404 of Sarbanes-Oxley
expressing a conclusion to which the Required Lenders do not object; and


 


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


 


As to any information
contained in materials furnished pursuant to Section 7.02(c), the
Borrower shall not be separately required to furnish such information under
clause (a) or (b) above, but the foregoing shall not be in derogation of the
obligation of the Borrower to furnish the information and materials described
in clauses (a) and (b) above at the times specified therein.


 


7.02         Certificates;
Other Information.


 


Deliver to the
Administrative Agent and each Lender, in form and detail satisfactory to the
Administrative Agent and the Required Lenders:


 


 


59





















 


(a)           concurrently
with the quarterly financial statements delivered pursuant to Sections
7.01(a) and (b), the Borrower shall deliver to the Administrative
Agent a supplemental schedule, in form and substance acceptable to the
Administrative Agent, which summarizes the foreign and domestic operations
(revenues/expenses, assets/liabilities and cash flow) of the Borrower and its
Subsidiaries.


 


(b)           concurrently with the delivery of the financial statements
referred to in Sections 7.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower;


 


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


 


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


 


(e)           promptly
after the furnishing thereof, copies of any statement or report furnished to
any holder of debt securities of any Loan Party or any Subsidiary thereof
pursuant to the terms of any indenture, loan or credit or similar agreement and
not otherwise required to be furnished to the Lenders pursuant to Section
7.01 or any other clause of this Section 7.02;


 


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


 


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


 


Documents required to be
delivered pursuant to Section 7.01(a) or (b) or Section
7.02(c) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 11.02;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided
that: (A) the Borrower shall deliver
paper copies of such documents to the Administrative Agent or any Lender that
requests the Borrower to deliver such paper copies until a written request to
cease delivering paper copies is given by the Administrative Agent or such
Lender and (B) the Borrower shall notify
the Administrative Agent and each Lender (by telecopier or electronic mail) of
the posting of any such documents and provide to the Administrative Agent by electronic
mail 


 


 


60





















 


electronic versions (i.e., soft
copies) of such documents. 
Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 7.02(b) to the Administrative
Agent.  Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent will make
available to the Lenders and the L/C Issuer materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with respect to the
Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that so long as
the Borrower is the issuer of any outstanding debt or equity securities that
are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that are
to be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials
“PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent and the Lenders to treat such Borrower Materials as not containing any
material non-public information with respect to the Borrower or its securities
for purposes of United States federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute
Information, they shall be treated as set forth in Section 11.07); (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated as “Public Investor;” and (z) the
Administrative Agent shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the
Platform not marked as “Public Investor.” Notwithstanding the foregoing, the
Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC.”


 


7.03         Notices.


 


(a)           Promptly (and in
any event, within two Business Days) notify the Administrative Agent and each
Lender of the occurrence of any Default.


 


(b)           Promptly notify
the Administrative Agent and each Lender of any matter that has resulted or
could reasonably be expected to result in a Material Adverse Effect.


 


(c)           Promptly notify
the Administrative Agent and each Lender of the occurrence of any ERISA Event.


 


(d)           Promptly notify
the Administrative Agent and each Lender of (i) any material change in
accounting policies or financial reporting practices by the Borrower or any
Subsidiary or (ii) the occurrence of any Internal Control Event.


 


Each notice pursuant to this
Section 7.03(a) through (d) shall be accompanied by a statement
of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. 
Each notice pursuant to Section 7.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.


 


 


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7.04         Payment
of Obligations.


 


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


 


7.05         Preservation
of Existence, Etc.


 


(a)           Preserve, renew and maintain in full force and
effect its legal existence under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 8.04 or 8.05.


 


(b)           Preserve, renew and maintain in full force and effect its
good standing under the Laws of the jurisdiction of its organization, except to
the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(c)           Take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


(d)           Preserve or renew
all of its material registered patents, copyrights, trademarks, trade names and
service marks, the non-preservation of which could reasonably be expected to
have a Material Adverse Effect.


 


7.06         Maintenance
of Properties.


 


(a)           Maintain, preserve and protect all of
its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted.


 


(b)           Make all necessary repairs thereto
and renewals and replacements thereof, except where the failure to do so could
not reasonably be expected to have a Material Adverse Effect.


 


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


 


7.07         Maintenance
of Insurance.


 


Maintain in full force and effect insurance (including worker’s compensation insurance, liability insurance,
casualty insurance and business interruption insurance) with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such
amounts, with such deductibles and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar
properties in localities where the Borrower or the applicable Subsidiary
operates.


 


7.08         Compliance
with Laws.


 


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


 


 


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7.09         Books
and Records.


 


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


 


(b)           Maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the
case may be.


 


7.10         Inspection
Rights.


 


Permit
representatives and independent contractors of the Administrative Agent and
each Lender to visit and inspect any of its properties, to examine its
corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss its affairs, finances and accounts with its
directors, officers, and independent public accountants, all at the expense of
the Borrower and at such reasonable times during normal business hours and as
often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that when an Event of Default exists
the Administrative Agent or any Lender (or any of their respective
representatives or independent contractors) may do any of the foregoing at the
expense of the Borrower at any time during normal business hours and without
advance notice.


 


7.11         Use
of Proceeds.


 


Use the proceeds of the
Credit Extensions to finance working capital, capital expenditures and other
lawful corporate purposes (including Acquisitions), provided that in no
event shall the proceeds of the Credit Extensions be used in contravention of
any Law or of any Loan Document.


 


7.12         Additional
Subsidiaries.


 


Within thirty (30) days
after any Person becomes a Material Domestic Subsidiary (including any Domestic
Subsidiary that becomes a Material Domestic Subsidiary after its formation or
acquisition), cause such Person to (i) become a Guarantor by executing and
delivering to the Administrative Agent a Joinder Agreement or such other
documents as the Administrative Agent shall deem appropriate for such purpose,
and (ii) deliver to the Administrative Agent documents of the types referred to
in Sections 5.01(f) and (g) and favorable opinions of counsel to
such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in clause
(i)), all in form, content and scope reasonably satisfactory to the
Administrative Agent.


 


If at any time (a) the aggregate revenues of all Immaterial
Domestic Subsidiaries exceed 5% of the revenue of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP or (b) the aggregate book value of the assets of
all Immaterial Domestic Subsidiaries exceed 5% of the book value of the assets
of the Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP, then the Borrower shall cause one or more of such
Immaterial Domestic Subsidiaries to (i)
become a Guarantor by executing and delivering to the Administrative Agent a
Joinder Agreement or such other documents as the Administrative Agent shall
deem appropriate for such purpose, and (ii) deliver to the Administrative Agent
documents of the types referred to in Sections 5.01(f) and (g)
and favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, 


 


 


63





















 


validity, binding effect and enforceability
of the documentation referred to in clause (i)), all in form, content and scope
reasonably satisfactory to the Administrative Agent.


 


7.13         ERISA
Compliance.


 


Do, and cause each of its
ERISA Affiliates to do, each of the following: (a) maintain each Plan in
compliance in all material respects with the applicable provisions of ERISA,
the Internal Revenue Code and other federal or state law; (b) cause each Plan
that is qualified under Section 401(a) of the Internal Revenue Code to
maintain such qualification; and (c) make all required contributions to any
Plan subject to Section 412 of the Internal Revenue Code.


 


7.14         Pledged
Assets.


 


Cause (a) 100% of the issued and
outstanding Equity Interests of each Material Domestic Subsidiary and
(b) 66% (or such greater percentage that,
due to a change in an applicable Law after the date hereof, (1) could not
reasonably be expected to cause the undistributed earnings of such Foreign
Subsidiary as determined for United States federal income tax purposes to be
treated as a deemed dividend to such Foreign Subsidiary’s United States parent
and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Equity Interests entitled
to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and
100% of the issued and outstanding Equity
Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2))
in each Material Foreign Subsidiary directly owned by the Borrower or any
Domestic Subsidiary to be subject at all times (subject to Section 7.16)
to a first priority, perfected Lien in favor of the Administrative Agent pursuant
to the terms and conditions of the Collateral Documents, together with opinions
of counsel  and any filings and
deliveries reasonably necessary in connection therewith to perfect the security
interests therein, all in form and substance reasonably satisfactory to the
Administrative Agent; provided that upon the termination or expiration
of the Tranche A Revolving Commitments and repayment in full in cash of all
Tranche A Revolving Loans, the Loan Parties shall not be required to comply
with this Section 7.14.


 


7.15         Maintenance of Accounts.


 


Maintain its primary
business, cash management, operating and administrative deposit accounts with
the Administrative Agent.


 


7.16         Post-Closing Matters.


 


(a)           Within one
hundred eighty (180) days after the Closing Date, the Loan Parties shall (a)
cause 66% of the issued and outstanding Equity Interests entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the
issued and outstanding Equity Interests not entitled to vote (within the meaning
of Treas. Reg. Section 1.956-2(c)(2)) in each Material Foreign Subsidiary
directly owned by any Loan Party on the Closing Date to be pledged to the
Administrative Agent pursuant to the terms and conditions of the Collateral
Documents, (b) deliver opinions of counsel in form and substance reasonably
satisfactory to the Administrative Agent in connection with such pledges and
(c) deliver such filings and deliveries reasonably requested by the
Administrative Agent in connection with such pledges; provided that upon
the termination or expiration of the Tranche A Revolving Commitments and
repayment in full in cash of all Tranche A Revolving Loans, the Loan Parties
shall not be required to comply with this Section 7.16.


 


(b)           Within ninety
(90) days after the Closing Date, the Borrower shall deliver to the
Administrative Agent (i) resolutions of
the board of directors of Walden University authorizing and approving the Loan
Documents certified by a secretary or
assistant secretary of such Loan Party to be true 


 


 


64





















 


and correct as of the
Closing Date and (ii) an opinion of
legal counsel to Walden University addressed to the Administrative Agent and
each Lender in form and substance satisfactory to the Administrative Agent.


 


(c)           Within thirty
(30) days after the Closing Date, the Borrower shall deliver to the
Administrative Agent an opinion of California legal counsel to the Loan Parties
organized under the laws of California addressed to the Administrative Agent
and each Lender, dated as of the Closing Date, and in form and substance
satisfactory to the Administrative Agent.


 


 


ARTICLE VIII



NEGATIVE COVENANTS


 


So long as any Lender shall have any Tranche A Revolving Commitment
hereunder or any Tranche A Revolving Loan shall remain unpaid, no Loan Party
shall, nor shall it permit any Subsidiary to, directly or indirectly:


 


8.01         Liens.


 


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


 


(a)           Liens
pursuant to any Loan Document;


 


(b)           Liens
existing on the date hereof and listed on Schedule 8.01 and any renewals
or extensions thereof, provided that (i) the property covered thereby is
not changed, (ii) the amount secured or benefited thereby is not increased,
(iii) the direct or any contingent obligor with respect thereto is not changed,
and (iv) any renewal or extension of the obligations secured or benefited
thereby is permitted by Section 8.03(b);


 


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


 


(d)           statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and suppliers and other Liens
imposed by law or pursuant to customary reservations or retentions of title
arising in the ordinary course of business, provided that such Liens
secure only amounts not yet due and payable or, if due and payable, are unfiled
and no other action has been taken to enforce the same or are being contested
in good faith by appropriate proceedings for which adequate reserves determined
in accordance with GAAP have been established;


 


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


 


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


 


 


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


 


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


 


(i)            Liens
securing purchase money Indebtedness
(including obligations in respect of Capital Leases or Synthetic Leases);
provided that (i) such Liens do not at any time encumber any property
other than the property financed by such Indebtedness, (ii) the Indebtedness
secured thereby does not exceed the cost or fair market value, whichever is
lower, of the property being acquired on the date of acquisition and (iii) in
the case of purchase money Indebtedness, such Liens attach to such property
concurrently with or within ninety days after the acquisition thereof;


 


(j)            Liens
on any real property owned by any Foreign Subsidiary;


 


(k)           leases or subleases granted to others not interfering in any material respect with the
business of the Borrower or any of its Subsidiaries;


 


(l)            any interest of title of a lessor under, and Liens arising
from UCC financing statements (or equivalent filings, registrations or agreements
in foreign jurisdictions) relating to, leases permitted by this Agreement;


 


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


 


(n)           Liens of a collection bank arising under Section 4-210 of the
Uniform Commercial Code on items in the course of collection; and


 


(o)           Liens of sellers of goods to
the Borrower and any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar provisions of
applicable law in the ordinary course of business, covering only the goods sold
and securing only the unpaid purchase price for such goods and related
expenses.


 


8.02         [Reserved].


 


8.03         Indebtedness.


 


Permit the Borrower or any
Domestic Subsidiary to create, incur, assume or suffer to exist any
Indebtedness, except:


 


(a)           Indebtedness
under the Loan Documents;


 


(b)           obligations
(contingent or otherwise) existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the ordinary
course of business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by
such Person, and not for purposes of speculation or taking a “market view;” and
(ii) such Swap Contract does not contain any provision exonerating 


 


 


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the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;


 


(c)           Indebtedness
owing (i) by any Subsidiary to the
Borrower, (ii) by any Subsidiary to any
other Subsidiary and (iii) by the
Borrower to any Subsidiary;


 


(d)           Indebtedness in an aggregate principal
amount not to exceed $25 million at any one time outstanding; and


 


(e)           Guarantees with respect to Indebtedness permitted
under this Section 8.03, provided that neither the Borrower nor
any Domestic Subsidiary shall be permitted to provide a Guarantee with respect
to any Indebtedness incurred by any Foreign Subsidiary in excess of $10 million
at any time outstanding.


 


8.04         Fundamental
Changes.


 


Merge, dissolve,
liquidate, consolidate with or into another Person, or Dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person; provided that, notwithstanding the foregoing
provisions of this Section 8.04 but subject to the terms of Sections 7.12
and 7.14, (a) the Borrower may merge or consolidate with any of its
Subsidiaries provided that the Borrower shall be the continuing or surviving
corporation, (b) any Loan Party other than the Borrower may merge or
consolidate with any other Loan Party other than the Borrower, (c) any Foreign
Subsidiary may be merged or consolidated with or into any Loan Party provided
that such Loan Party shall be the continuing or surviving corporation, (d) any
Foreign Subsidiary may be merged or consolidated with or into any other Foreign
Subsidiary, (e) any Subsidiary of the Borrower may merge with any Person that
is not a Loan Party in connection with an 
Acquisition and (f) any Subsidiary
may dissolve, liquidate or wind up its affairs at any time provided that such
dissolution, liquidation or winding up, as applicable, could not have a
Material Adverse Effect.


 


8.05         Dispositions.


 


Make
any Disposition unless (i) at least seventy-five percent (75%) of the
consideration paid in connection therewith shall be cash or Cash Equivalents
paid contemporaneous with consummation of the transaction and shall be in an
amount not less than the fair market value of the property disposed of, (ii) such transaction does not involve the sale
or other disposition of a minority equity interest in any Subsidiary, (iii) such transaction does not involve a sale
or other disposition of receivables other than receivables owned by or
attributable to other property concurrently being disposed of in a transaction
otherwise permitted under this Section 8.05, and (iv) the aggregate net book value of all of the
assets sold or otherwise disposed of by the Borrower and its Subsidiaries in
all such transactions in any fiscal year of the Borrower shall not exceed $35
million.


 


8.06         [Reserved].


 


8.07         Change
in Nature of Business.


 


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


 


 


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8.08         Transactions
with Affiliates and Insiders.


 


Enter into or permit to exist any transaction or series
of transactions with any officer, director or Affiliate of such Person other
than (a) advances of working capital to any Loan Party, (b) transfers of cash
and assets to any Loan Party, (c) intercompany transactions expressly permitted
by Section 8.03, Section 8.04 or Section 8.05, (d) normal
and reasonable compensation and reimbursement of expenses of officers and
directors and (e) except as otherwise specifically limited in this Agreement,
other transactions which are entered into in the ordinary course of such
Person’s business on terms and conditions substantially as favorable to such
Person as would be obtainable by it in a comparable arms-length
transaction with a Person other than an officer, director or Affiliate.


 


8.09         Burdensome
Agreements.


 


(a)           Enter into, or
permit to exist, any Contractual Obligation that encumbers or restricts on the
ability of any such Person to (i) pay dividends or make any other distributions
to any Loan Party on its Equity
Interests or with respect to any other interest or participation in, or
measured by, its profits, (ii) pay any Indebtedness or other obligation owed to
any Loan Party, (iii) make loans or
advances to any Loan Party, (iv)
sell, lease or transfer any of its property to any Loan Party, (v) pledge its property
pursuant to the Loan Documents or
any renewals, refinancings, exchanges, refundings or extension thereof or (vi) act as a Loan Party pursuant to the Loan Documents
or any renewals, refinancings, exchanges, refundings or extension thereof,
except (in respect of any of the matters referred to in clauses (i)-(v)
above) for (1) this Agreement and the other Loan
Documents, (2) any document or
instrument governing purchase money Indebtedness or mortgage Indebtedness,
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (3) any
Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien or (4) customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under
Section 8.05 pending the consummation of such sale.


 


(b)           Enter into, or
permit to exist, any Contractual Obligation that prohibits or otherwise restricts the existence of any Lien upon any of
its property in favor of the Administrative Agent (for the benefit of the
Lenders) for the purpose of securing the Obligations, whether now owned or
hereafter acquired, or requiring the grant of any security for any obligation
if such property is given as security for the Obligations, except (i) any
document or instrument governing purchase
money Indebtedness or mortgage Indebtedness,  provided that any
such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith, (ii) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien and (iii) pursuant to customary restrictions and
conditions contained in any agreement relating to the sale of any property
permitted under Section 8.05, pending the consummation of such sale.


 


8.10         Use
of Proceeds.


 


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


 


 


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8.11         Consolidated Leverage Ratio.


 


Permit as of the end of any
fiscal quarter of the Borrower the ratio of (a)
the sum of (i) Consolidated Funded
Indebtedness on such day minus (ii)
unrestricted cash and Cash Equivalents held by the Borrower and its
Subsidiaries on such day to (b)
Consolidated EBITDA for the period of four consecutive fiscal quarters ending
on such day to be greater than 2.5:1.0.


 


8.12         [RESERVED]


 


8.13         Organization
Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity.


 


(a)           Amend, modify or change its
Organization Documents in a manner adverse to the Lenders.


 


(b)           Change its fiscal year.


 


(c)           Without providing ten (10) days prior
written notice to the Administrative Agent, change its name, state of formation
or form of organization.


 


8.14         Ownership
of Subsidiaries.


 


Notwithstanding any other provisions of this Agreement
to the contrary, permit any Person (other than the Borrower or any Wholly Owned
Subsidiary) to own any Equity Interests of any Domestic Subsidiary or any
Material Foreign Subsidiary, except to qualify directors where required by
applicable law or to satisfy other
requirements of applicable law with respect to the ownership of Equity
Interests of Foreign Subsidiaries.


 


 


ARTICLE IX



EVENTS OF DEFAULT AND REMEDIES


 


9.01         Events
of Default.


 


Any of the following shall constitute an Event of Default:


 


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


 


(b)           Specific
Covenants.


 


(i)            Any
Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.01, 7.02 or 7.03  and such failure continues for five (5) Business
Days; or


 


(ii)           Any
Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.05(a), 7.10, 7.11, 7.14,
or 7.15 or Article VIII; or


 


(c)           Other
Defaults.  Any Loan Party fails to
perform or observe any other covenant or agreement (not specified in subsection
(a) or (b) above) contained in any Loan Document on its part to be performed or
observed and such failure continues for thirty days after the earlier of 


 


 


69





















 


(i) a Responsible Person of any Loan Party
becoming aware of such failure or (ii)
notice thereof to any Loan Party by the Administrative Agent; or


 


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


 


(e)           Cross-Default.  (i) Any Loan Party or any Material Subsidiary
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Material
Indebtedness; (ii) any Loan Party or any Material Subsidiary fails to observe
or perform any other agreement or condition relating to any Material
Indebtedness or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Material
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause, with the giving of notice if required, such Material Indebtedness to be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed
(automatically or otherwise), or an offer to repurchase, prepay, defease or
redeem such Indebtedness to be made, prior to its stated maturity or cash
collateral in respect thereof to be demanded; or (iii) there occurs under any
Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which
any Loan Party or any Material Subsidiary is the Defaulting Party (as defined
in such Swap Contract) or (B) any Termination Event (as so defined) under such
Swap Contract as to which any Loan Party or Material Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by
any Loan Party or any Material Subsidiary as a result thereof is greater than
the Threshold Amount; or


 


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


 


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


 


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


 


 


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which a stay of enforcement
of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or


 


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


 


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


 


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


 


9.02         Remedies
Upon Event of Default.


 


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


 


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


 


(b)           declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;


 


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


 


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


 


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


 


 


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9.03         Application
of Funds.


 


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


 


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


 


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


 


Third, to payment of
that portion of the Obligations constituting accrued and unpaid Letter of
Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between
any Loan Party and any Lender, or any Affiliate of a Lender, to the extent such
Swap Contract is permitted by Section 8.03(d), ratably among the
Lenders (and, in the case of such Swap Contracts, Affiliates of Lenders) and
the L/C Issuer in proportion to the respective amounts described in this clause
Third held by them;


 


Fourth, to (a)
payment of that portion of the Obligations constituting unpaid principal of the
Loans and L/C Borrowings, (b) payment of breakage,
termination or other payments, and any interest accrued thereon, due under any
Swap Contract between any Loan Party and any Lender, or any Affiliate of a
Lender, to the extent such Swap Contract is permitted by Section 8.03(d),
(c) payments of amounts due
under any Treasury Management Agreement between any Loan Party and any Lender,
or any Affiliate of a Lender and (d) Cash Collateralize that portion of
L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit,
ratably among the Lenders (and, in the case of such Swap Contracts, Affiliates
of Lenders) and the L/C Issuer in proportion to the respective amounts
described in this clause Fourth held by them; and


 


Last, the balance,
if any, after all of the Obligations have been indefeasibly paid in full, to
the Borrower or as otherwise required by Law.


 


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


 


 


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ARTICLE X



ADMINISTRATIVE AGENT


 


10.01       Appointment
and Authority.


 


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


 


10.02       Rights
as a Lender.


 


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


 


10.03       Exculpatory
Provisions.


 


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


 


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


 


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


 


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


 


The Administrative Agent
shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the 


 


 


73





















 


circumstances as provided in Sections
11.01 and 9.02) or (ii) in the absence of its own gross negligence or
willful misconduct.  The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Administrative Agent by the
Borrower, a Lender or the L/C Issuer.


 


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


 


10.04       Reliance
by Administrative Agent.


 


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


 


10.05       Delegation
of Duties.


 


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


 


10.06       Resignation
of Administrative Agent.


 


The Administrative Agent may
at any time give notice of its resignation to the Lenders, the L/C Issuer and
the Borrower.  Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in consultation
with the Borrower, to appoint a successor, which shall be a bank with an office
in the United States, or an Affiliate of any such bank with an office in the
United States.  If no such successor
shall have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then 


 


 


74





















 


the retiring Administrative Agent may on
behalf of the Lenders and the L/C Issuer, appoint a successor Administrative
Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the
retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or the L/C Issuer under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such
time as a successor Administrative Agent is appointed) and (2) all payments,
communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C
Issuer directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for above in this Section.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative
Agent shall be discharged from all of its duties and obligations hereunder or
under the other Loan Documents (if not already discharged therefrom as provided
above in this Section).  The fees payable
by the Borrower to a successor Administrative Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and
such successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.04 shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


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


 


10.07       Non-Reliance
on Administrative Agent and Other Lenders.


 


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


 


10.08       No
Other Duties; Etc.


 


Anything herein to the
contrary notwithstanding, none of the bookrunners, arrangers, syndication
agents, documentation agents or co-agents shall have any powers, duties or responsibilities
under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.


 


 


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10.09       Administrative
Agent May File Proofs of Claim.


 


In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Loan Party, the Administrative Agent (irrespective of whether the principal
of any Loan or L/C Obligation shall then be due and payable as herein expressed
or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations
(other than obligations under Swap Contracts or Treasury Management Agreements
to which the Administrative Agent is not a party) that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have
the claims of the Lenders, the L/C Issuer and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the
L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 11.04) allowed in such judicial proceeding; and


 


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


 


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


 


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


 


10.10       Collateral
and Guaranty Matters.


 


The
Lenders and the L/C Issuer irrevocably authorize the Administrative Agent, at
its option and in its discretion,


 


(a)           to release any Lien on any collateral
granted to or held by the Administrative Agent under any Loan Document (i) upon termination of the Aggregate
Tranche A Revolving Commitments and payment in full of all Tranche A Revolving
Loans so long as no Default then exists, (ii) upon termination of the Aggregate
Revolving Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of
all Letters of Credit, (iii) that
is transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document, or (iv) as approved in accordance with Section 11.01;


 


 


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(b)           to subordinate any Lien on any
property granted to or held by the Administrative Agent under any Loan Document
to the holder of any Lien on such property that is permitted by Section 8.01(i);
and


 


(c)           to release any Guarantor from its
obligations under the Guaranty if such Person ceases to be a Subsidiary as a
result of a transaction permitted hereunder.


 


Upon
request by the Administrative Agent at any time, the Required Lenders will
confirm in writing the Administrative Agent’s authority to release or
subordinate its interest in particular types or items of property, or to
release any Guarantor from its obligations under the Guaranty, pursuant to this
Section 10.10.


 


ARTICLE XI



MISCELLANEOUS


 


11.01       Amendments,
Etc.


 


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


 


(a)           no such
amendment, waiver or consent shall:


 


(i)            extend
or increase the Commitment of a Lender (or reinstate any Commitment terminated
pursuant to Section 9.02) without the written consent of such Lender
whose Commitment is being extended or increased (it being understood and agreed
that a waiver of any condition precedent set forth in Section 5.02 or of
any Default or a mandatory reduction in Commitments is not considered an
extension or increase in Commitments of any Lender);


 


(ii)           postpone
any date fixed by this Agreement or any other Loan Document for any payment of
principal (excluding mandatory prepayments), interest, fees or other amounts
due to the Lenders (or any of them) or any scheduled or mandatory reduction of
the Commitments hereunder or under any other Loan Document without the written
consent of each Lender entitled to receive such payment or whose Commitments
are to be reduced;


 


(iii)          reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (i) of the final proviso to this Section
11.01) any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender entitled to receive such
payment of principal, interest, fees or other amounts; provided, however,
that only the consent of the Required Lenders shall be necessary to (A) amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the
Default Rate or (B) to amend any financial covenant hereunder (or any defined
term used therein) even if the effect of such amendment would be to reduce the
rate of interest on any Loan or L/C Borrowing or to reduce any fee payable
hereunder;


 


 


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(iv)          change
Section 2.13 or Section 9.03 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each
Lender directly affected thereby;


 


(v)           amend
Section 1.09 or the definition of “Alternative Currency” without the
written consent of each Lender;


 


(vi)          change
any provision of this Section 11.01(a) or the definition of “Required
Lenders” without the written consent of each Lender directly affected thereby;


 


(vii)         except in connection with a Disposition
permitted under Section 8.05, release all or substantially all of the
collateral without the written consent of each Lender whose Obligations
are secured by such collateral;


 


(viii)        release
the Borrower or, except in connection with
a merger or consolidation permitted under Section 8.04 or a Disposition
permitted under Section 8.05, all or substantially all of the
value of the Guaranty without the written consent of each Lender whose
Obligations are guarantied thereby; or


 


(b)           prior
to the termination of the Tranche A Revolving Commitments, unless also
signed by the Tranche A Required Lenders
(other than Defaulting Lenders) holding in the aggregate at least a majority of
the Tranche A Revolving Commitments, no such amendment, waiver or
consent shall, (i) waive any Default for
purposes of Section 5.02(b) or (ii) amend, change, waive, discharge
or terminate Sections 5.02 or 9.01 in a manner adverse to such
Tranche A Required Lenders; or


 


(c)           unless
also signed by the Tranche A Required Lenders (other than Defaulting Lenders)
holding in the aggregate at least a majority of the outstanding Tranche A
Revolving Loan (and participations therein), no such amendment, waiver or
consent shall (i) amend, change, waive, discharge or terminate Section 2.05(b)(iii)
so as to alter the manner of application of proceeds of any mandatory
prepayment required by Section 2.05(b)(ii) or (iii) hereof
or (ii) amend, change, waive, discharge or terminate this Section 11.01(c);


 


(d)           prior
to the termination of the Tranche B Revolving Commitments, unless also
signed by the Tranche B Required Lenders
(other than Defaulting Lenders) holding in the aggregate at least a majority of
the Tranche B Revolving Commitments, no such amendment, waiver or
consent shall, (i) waive any Default for
purposes of Section 5.02(b) or (ii) amend, change, waive, discharge
or terminate Sections 5.02 or 9.01 in a manner adverse to
such Tranche B Required Lenders; or


 


(e)           unless also
signed by the L/C Issuer, no amendment, waiver or consent shall affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it;


 


(f)            unless also
signed by the Swing Line Lender, no amendment, waiver or consent shall affect
the rights or duties of the Swing Line Lender under this Agreement; and


 


(g)           unless also
signed by the Administrative Agent, no amendment, waiver or consent shall
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document;


 


provided, however,
that notwithstanding anything to the contrary herein, (i) the Fee Letter may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto, (ii) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent 


 


 


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hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender,
(iii) each Lender is entitled to vote as such Lender sees fit on any
bankruptcy reorganization plan that affects the Loans, and each Lender
acknowledges that the provisions of Section 1126(c) of the Bankruptcy Code
of the United States supersedes the unanimous consent provisions set forth
herein and (iv) the Required Lenders shall determine whether or not to
allow a Loan Party to use cash collateral in the context of a bankruptcy or
insolvency proceeding and such determination shall be binding on all of
the Lenders.


 


11.02       Notices
and Other Communications; Facsimile Copies.


 


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


 


(i)            if to any Loan Party, the
Administrative Agent or the L/C Issuer or the Swing Line Lender, to the
address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 11.02; and


 


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


 


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


 


Notwithstanding anything
herein to the contrary, except to the extent specifically agreed to in writing
by a Loan Party, any notice of a Default or Event of Default sent by the
Administrative Agent or any Lender to such Loan Party shall be in writing and
shall be delivered by hand or overnight courier service or mailed by certified
or registered mail to the address set forth above (it being the intent that
such notices shall not be delivered by telecopier or by electronic
communication).


 


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


 


Unless the Administrative
Agent otherwise prescribes, (i) notices and other communications sent to
an e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is
not sent during the 


 


 


79





















 


normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the opening of
business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.


 


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


 


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


 


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


 


11.03       No
Waiver; Cumulative Remedies.


 


No failure by any Lender,
the L/C Issuer or the Administrative Agent to exercise, and no delay by any
such Person in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder 


 


 


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preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


11.04       Expenses;
Indemnity; and Damage Waiver.


 


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


 


(b)           Indemnification
by the Loan Parties.  The Loan
Parties shall indemnify the Administrative Agent (and any sub-agent thereof),
each Lender and the L/C Issuer, and each Related Party of any of the foregoing
Persons (each such Person being called an “Indemnitee”) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses (including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or
asserted against any Indemnitee by any third party or by the Borrower or any
other Loan Party arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement, any other Loan Document
or any agreement or instrument contemplated hereby or thereby, the performance
by the parties hereto of their respective obligations hereunder or thereunder
or the consummation of the transactions contemplated hereby or thereby, or, in
the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan
Documents, (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by a Loan Party
or any of its Subsidiaries, or any Environmental Liability related in any way
to a Loan Party or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses (x) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee, (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such
Indemnitee’s obligations hereunder or under any other Loan Document, if the
Borrower or such Loan Party has obtained a final and nonappealable judgment in
its favor on such claim as determined by a court of competent jurisdiction or
(z) result from a claim solely between Lenders and not arising out of, directly
or indirectly, any action or inaction by the Borrower or any other Loan Party.


 


 


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(c)           Reimbursement
by Lenders.  To the extent that the
Loan Parties for any reason fail to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by them to the
Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the L/C Issuer or such Related
Party, as the case may be, such Lender’s Applicable Percentage (determined as
of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) or the L/C Issuer in its capacity as such, or against any Related
Party of any of the foregoing acting for the Administrative Agent (or any such
sub-agent) or L/C Issuer in connection with such capacity.  The obligations of the Lenders under this
subsection (c) are subject to the provisions of Section 2.12(d).


 


(d)           Waiver of
Consequential Damages, Etc.  To the
fullest extent permitted by applicable law, no Loan Party shall assert, and
each Loan Party hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b)
above shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.


 


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


 


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


 


11.05       Payments
Set Aside.


 


To the extent that any
payment by or on behalf of any Loan Party is made to the Administrative Agent,
the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or
any Lender exercises its right of setoff, and such payment or the proceeds of
such setoff or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent, the L/C Issuer or such
Lender in its discretion) to be repaid to a trustee, receiver or any other
party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full
force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the applicable Overnight Rate from time to time in
effect.  The obligations of the Lenders
and the L/C Issuer under clause (b) of the preceding sentence shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


 


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11.06       Successors
and Assigns.


 


(a)           Successors and Assigns Generally.  The provisions of this Agreement and the
other Loan Documents shall be binding upon and inure to the benefit of the
parties hereto and thereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder or thereunder without the prior
written consent of the Administrative Agent and each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder except
(i) to an Eligible Assignee in accordance with the provisions of subsection (b)
of this Section, (ii) by way of participation in accordance with the provisions
of subsection (d) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the L/C Issuer and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b), participations
in L/C Obligations and in Swing Line Loans) at the time owing to it); provided
that


 


(i)            except in the case
of an assignment of the entire remaining amount of the assigning Lender’s
Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;


 


(ii)           each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s Loans and Commitments, and rights and obligations with
respect thereto, assigned, except that this clause (ii) shall not apply to
rights in respect of Swing Line Loans;


 


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


 


(iv)          the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Assumption, together with a processing and recordation fee in the 


 


 


83





















 


amount, if any, required as set forth in Schedule 11.06, and the Eligible Assignee, if it shall not be
a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in
each Assignment and Assumption, the Eligible Assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05
and 11.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment).  Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


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


 


(d)           Participations. 
Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such
Lender’s rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, the other Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in clauses (i) through (viii) of the Section 11.01(a)
that affects such Participant.  Subject
to subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 11.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a
Lender.


 


 


84





















 


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


 


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


 


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


 


(h)           Resignation as
L/C Issuer or Swing Line Lender after Assignment.  Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitment
and Loans pursuant to subsection (b) above, Bank of America may, (i) upon
thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon thirty days’ notice to the Borrower, resign as Swing Line Lender.  In the event of any such resignation as L/C
Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of Bank of America as L/C Issuer or Swing Line
Lender, as the case may be.  If Bank of
America resigns as L/C Issuer, it shall retain all the rights, powers, privileges
and duties of the L/C Issuer hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as L/C Issuer and all
L/C Obligations with respect thereto (including the right to require the
Lenders to make Base Rate Loans or fund risk participations in Unreimbursed
Amounts pursuant to Section 2.03(c)). 
If Bank of America resigns as Swing Line Lender, it shall retain all the
rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to Section
2.04(c).  Upon the appointment of a
successor L/C Issuer and/or Swing Line Lender, (1) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring L/C Issuer or Swing Line Lender, as the case may be, and (2) the
successor L/C Issuer shall issue letters of credit in substitution for the
Letters of Credit, if any, outstanding at the time of such succession or make
other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


11.07       Treatment
of Certain Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and representatives and to any
direct or indirect contractual counterparty (or such contractual 


 


 


85





















 


counterparty’s professional advisor) under any Swap
Contract relating to Loans outstanding under this Agreement (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority purporting to have jurisdiction over it (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document 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
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to a Loan Party and its obligations, (g) with
the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent,
any Lender, the L/C Issuer or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower.


 


For
purposes of this Section, “Information” means all information received
from a Loan Party or any Subsidiary relating to the Loan Parties or any
Subsidiary or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
L/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party or
any Subsidiary, provided that, in the case of information received from
a Loan Party or any Subsidiary after the date hereof, such information is
clearly identified at the time of delivery as confidential.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered
to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.


 


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


 


11.08       Set-off.


 


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


 


 


86





















 


11.09       Interest
Rate Limitation.


 


Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any payment
that is not principal as an expense, fee, or premium rather than interest, (b)
exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


11.10       Counterparts;
Integration; Effectiveness.


 


This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 5.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.


 


11.11       Survival
of Representations and Warranties.


 


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


 


11.12       Severability.


 


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


 


 


87





















 


11.13       Replacement
of Lenders.


 


If (i) any Lender requests compensation under Section 3.04, (ii)
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
3.01, or (iii) any Lender is a Defaulting Lender, then the Borrower may, at
its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in, and consents
required by, Section 11.06), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee
that shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment), provided that:


 


(a)           the
Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 11.06(b);


 


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


 


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


 


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


 


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


 


11.14       Governing
Law; Jurisdiction; Etc.


 


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


 


(b)           SUBMISSION TO
JURISDICTION.  THE BORROWER AND EACH
OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
MARYLAND SITTING IN THE BALTIMORE CITY AND OF THE UNITED STATES DISTRICT COURT
OF THE DISTRICT OF MARYLAND AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF
THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
MARYLAND STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT.  EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. 
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY 


 


 


88





















 


LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE
TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.


 


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


 


(d)           SERVICE OF
PROCESS.  EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES
IN SECTION 11.02.  NOTHING IN
THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.


 


11.15       Waiver
of Right to Trial by Jury.


 


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


 


11.16       USA
PATRIOT Act Notice.


 


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


 


11.17       Judgment Currency.


 


If, for the purposes of
obtaining judgment in any court, it is necessary to convert a sum due hereunder
or any other Loan Document in one currency into another currency, the rate of
exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such
other currency on the Business Day preceding that on which final judgment is
given.  The obligation of each Borrower
in respect of any such sum due from it to the 


 


 


89





















 


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


 


[SIGNATURE
PAGES FOLLOW]


 


 


90





















 


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


 


	
  BORROWER:

  	
  LAUREATE EDUCATION, INC.,
  a Maryland corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Rosemarie Mecca

  
	
   

  	
  Name:

  	
  Rosemarie
  Mecca

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  



 


	
  GUARANTORS:

  	
  WALDEN
  E-LEARNING, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paula R. Singer

  
	
   

  	
  Name:

  	
  Paula
  R. Singer

  
	
   

  	
  Title:

  	
  President, Laureate Online
  Education

  
	
   

  	
   

  	
   

  
	
   

  	
  WALDEN
  UNIVERSITY, INC., a Florida corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Paula R. Singer

  
	
   

  	
  Name:

  	
  Paula
  R. Singer

  
	
   

  	
  Title:

  	
  President, Laureate Online
  Education

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  CANTER GROUP OF COMPANIES, a California corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert W. Zentz

  
	
   

  	
  Name:

  	
  Robert
  W. Zentz

  
	
   

  	
  Title:

  	
  Senior Vice President and
  General Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
  CANTER
  AND ASSOCIATES, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert W. Zentz

  
	
   

  	
  Name:

  	
  Robert
  W. Zentz

  
	
   

  	
  Title:

  	
  Senior Vice President and
  General Counsel

  
	
   

  	
   

  	
   

  
	
  ADMINISTRATIVE

  	
   

  	
   

  
	
  AGENT:

  	
  BANK OF AMERICA, N.A., as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mary Giermek

  
	
   

  	
  Name:

  	
  Mary
  Giermek

  
	
   

  	
  Title:

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
  LENDERS:

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as a Lender, L/C Issuer
  and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mary Giermek

  
	
   

  	
  Name:

  	
  Mary
  Giermek

  
	
   

  	
  Title:

  	
  Senior Vice President