Exhibit 10.1


 


Published CUSIP Number: 48667JAA9


 


 


CREDIT AGREEMENT


 


Dated as of September 15, 2005


 


among


 


KEANE, INC.


as the Borrower,


 


BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,


 


KEYBANK NATIONAL ASSOCIATION


as


Syndication Agent,


 


 


WACHOVIA BANK, NATIONAL ASSOCIATION


as


Documentation Agent


 


 


and


 


The Other Lenders Party Hereto


 


BANC OF AMERICA SECURITIES LLC,


as


Sole Lead Arranger and Sole Book Manager


 





















 


	
  ARTICLE I.

  	
  DEFINITIONS
  AND ACCOUNTING TERMS

  	
   

  
	
   

  	
   

  	
   

  
	
  1.01

  	
  Defined
  Terms

  	
   

  
	
  1.02

  	
  Other
  Interpretive Provisions

  	
   

  
	
  1.03

  	
  Accounting Terms

  	
   

  
	
  1.04

  	
  Rounding

  	
   

  
	
  1.05

  	
  Times of Day

  	
   

  
	
  1.06

  	
  Letter of Credit Amounts

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II.

  	
  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Committed Loans

  	
   

  
	
  2.02

  	
  Borrowings, Conversions and
  Continuations of Committed Loans

  	
   

  
	
  2.03

  	
  Letters of Credit

  	
   

  
	
  2.04

  	
  Swing Line Loans

  	
   

  
	
  2.05

  	
  Prepayments

  	
   

  
	
  2.06

  	
  Termination or Reduction of Commitments

  	
   

  
	
  2.07

  	
  Repayment of Loans

  	
   

  
	
  2.08

  	
  Interest

  	
   

  
	
  2.09

  	
  Fees

  	
   

  
	
  2.10

  	
  Computation of Interest and Fees

  	
   

  
	
  2.11

  	
  Evidence of Debt

  	
   

  
	
  2.12

  	
  Payments Generally; Administrative
  Agent’s Clawback

  	
   

  
	
  2.13

  	
  Sharing of Payments by Lenders

  	
   

  
	
  2.14

  	
  Increase in Commitments

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III.

  	
  TAXES, YIELD PROTECTION AND
  ILLEGALITY

  	
   

  
	
   

  	
   

  	
   

  
	
  3.01

  	
  Taxes

  	
   

  
	
  3.02

  	
  Illegality

  	
   

  
	
  3.03

  	
  Inability to Determine Rates

  	
   

  
	
  3.04

  	
  Increased Costs; Reserves on Eurodollar
  Rate Loans

  	
   

  
	
  3.05

  	
  Compensation for Losses

  	
   

  
	
  3.06

  	
  Mitigation Obligations; Replacement of
  Lenders

  	
   

  
	
  3.07

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV.

  	
  CONDITIONS PRECEDENT TO CREDIT
  EXTENSIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.01

  	
  Conditions of Initial Credit Extension

  	
   

  
	
  4.02

  	
  Conditions to all Credit Extensions

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V.

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  5.01

  	
  Existence, Qualification and Power;
  Compliance with Laws

  	
   

  
	
  5.02

  	
  Authorization; No Contravention

  	
   

  
	
  5.03

  	
  Governmental Authorization; Other
  Consents

  	
   

  
	
  5.04

  	
  Binding Effect

  	
   

  
	
  5.05

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

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  



 


i





















 


	
  5.07

  	
  No Default

  	
   

  
	
  5.08

  	
  Ownership of Property; Liens

  	
   

  
	
  5.09

  	
  Environmental Compliance

  	
   

  
	
  5.10

  	
  Insurance

  	
   

  
	
  5.11

  	
  Taxes

  	
   

  
	
  5.12

  	
  ERISA Compliance

  	
   

  
	
  5.13

  	
  Subsidiaries; Equity Interests

  	
   

  
	
  5.14

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

  	
   

  
	
  5.15

  	
  Disclosure

  	
   

  
	
  5.16

  	
  Compliance with Laws

  	
   

  
	
  5.17

  	
  Intellectual Property; Licenses, Etc

  	
   

  
	
  5.18

  	
  Status of Loan as Senior Debt

  	
   

  
	
  5.19

  	
  Subordinated Debt Documents

  	
   

  
	
  5.20

  	
  No Other Senior Debt

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI.

  	
  AFFIRMATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.01

  	
  Financial Statements

  	
   

  
	
  6.02

  	
  Certificates; Other Information

  	
   

  
	
  6.03

  	
  Notices

  	
   

  
	
  6.04

  	
  Payment of Obligations

  	
   

  
	
  6.05

  	
  Preservation of Existence, Etc

  	
   

  
	
  6.06

  	
  Maintenance of Properties

  	
   

  
	
  6.07

  	
  Maintenance of Insurance

  	
   

  
	
  6.08

  	
  Compliance with Laws

  	
   

  
	
  6.09

  	
  Books and Records

  	
   

  
	
  6.10

  	
  Inspection Rights

  	
   

  
	
  6.11

  	
  Use of Proceeds

  	
   

  
	
  6.12

  	
  Additional Guarantors

  	
   

  
	
  6.13

  	
  New Subsidiaries

  	
   

  
	
  6.14

  	
  Worldzen Ownership

  	
   

  
	
  6.15

  	
  Post Closing Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII.

  	
  NEGATIVE
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  7.01

  	
  Liens

  	
   

  
	
  7.02

  	
  Investments

  	
   

  
	
  7.03

  	
  Indebtedness

  	
   

  
	
  7.04

  	
  Fundamental Changes

  	
   

  
	
  7.05

  	
  Dispositions

  	
   

  
	
  7.06

  	
  Restricted Payments

  	
   

  
	
  7.07

  	
  Change in Nature of Business

  	
   

  
	
  7.08

  	
  Transactions with Affiliates

  	
   

  
	
  7.09

  	
  Burdensome Agreements

  	
   

  
	
  7.10

  	
  Use of Proceeds

  	
   

  
	
  7.11

  	
  Subordinated Debt

  	
   

  
	
  7.12

  	
  Senior Debt

  	
   

  



 


ii





















 


	
  7.13

  	
  Financial Covenants

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII.

  	
  EVENTS OF
  DEFAULT AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  8.01

  	
  Events of Default

  	
   

  
	
  8.02

  	
  Remedies Upon Event of Default

  	
   

  
	
  8.03

  	
  Application of Funds

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX.

  	
  ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  9.01

  	
  Appointment and Authority

  	
   

  
	
  9.02

  	
  Rights as a Lender

  	
   

  
	
  9.03

  	
  Exculpatory Provisions

  	
   

  
	
  9.04

  	
  Reliance by Administrative Agent

  	
   

  
	
  9.05

  	
  Delegation of Duties

  	
   

  
	
  9.06

  	
  Resignation of Administrative Agent

  	
   

  
	
  9.07

  	
  Non-Reliance on Administrative Agent
  and Other Lenders

  	
   

  
	
  9.08

  	
  No Other Duties, Etc

  	
   

  
	
  9.09

  	
  Administrative Agent May File
  Proofs of Claim

  	
   

  
	
  9.10

  	
  Guaranty Matters

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE X.

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.01

  	
  Amendments, Etc

  	
   

  
	
  10.02

  	
  Notices; Effectiveness; Electronic
  Communication

  	
   

  
	
  10.03

  	
  No Waiver; Cumulative Remedies

  	
   

  
	
  10.04

  	
  Expenses; Indemnity; Damage Waiver

  	
   

  
	
  10.05

  	
  Payments Set Aside

  	
   

  
	
  10.06

  	
  Successors and Assigns

  	
   

  
	
  10.07

  	
  Treatment of Certain Information;
  Confidentiality

  	
   

  
	
  10.08

  	
  Right of Setoff

  	
   

  
	
  10.09

  	
  Interest Rate Limitation

  	
   

  
	
  10.10

  	
  Counterparts; Integration;
  Effectiveness

  	
   

  
	
  10.11

  	
  Survival of Representations and
  Warranties

  	
   

  
	
  10.12

  	
  Severability

  	
   

  
	
  10.13

  	
  Replacement of Lenders

  	
   

  
	
  10.14

  	
  Governing Law; Jurisdiction; Etc

  	
   

  
	
  10.15

  	
  Waiver of Jury Trial

  	
   

  
	
  10.16

  	
  USA PATRIOT Act Notice

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  



 


iii





















 


	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.01

  	
  Commitments and Applicable
  Percentages

  	
   

  
	
  5.06

  	
  Litigation

  	
   

  
	
  5.13

  	
  Subsidiaries; Other
  Equity Investments

  	
   

  
	
  7.01

  	
  Existing Liens

  	
   

  
	
  7.02

  	
  Existing Investments

  	
   

  
	
  7.03

  	
  Existing Indebtedness

  	
   

  
	
  7.05

  	
  Permitted Dispositions

  	
   

  
	
  10.02

  	
  Administrative Agent’s Office;
  Certain Addresses for Notices

  	
   

  
	
  10.06

  	
  Processing and Recordation Fees

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Form of

  	
   

  
	
   

  	
   

  	
   

  
	
  A

  	
  Committed Loan
  Notice

  	
   

  
	
  B

  	
  Swing Line Loan
  Notice

  	
   

  
	
  C

  	
  Note

  	
   

  
	
  D

  	
  Compliance
  Certificate

  	
   

  
	
  E

  	
  Assignment and
  Assumption

  	
   

  
	
  F

  	
  Guaranty

  	
   

  
	
  G

  	
  Opinion Matters

  	
   

  



 


iv





















 


CREDIT AGREEMENT


 


This CREDIT
AGREEMENT (“Agreement”) is entered into as of September 15,
2005, among KEANE, INC., a Massachusetts corporation (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), BANK OF
AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, KEYBANK NATIONAL ASSOCIATION, as
Syndication Agent and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Documentation Agent.


 


The Borrower has
requested that the Lenders
provide a revolving credit facility, 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:


 


“Accounts
Receivable” means rights of the Borrower or any of its Subsidiaries to
payment for goods sold, leased or otherwise marketed in the ordinary course of
business and all rights of the Borrower or any of its Subsidiaries to payment
for services rendered in the ordinary course of business and all sums of money
or other proceeds due thereon pursuant to transactions with account debtors
recorded on books of account in accordance with GAAP.


 


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


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.


 


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


 


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


 


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


 


“Agreement”
means this Credit Agreement.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time.  If the commitment of each Lender to make
Loans and the


 





















 


obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.02 or if the Aggregate 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 the following percentages per annum, based upon the
Consolidated Senior Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to Section 6.02(b):


 


Applicable Rate


 




	
  Pricing

  Level

  	
   

  	
  Senior
  Leverage

  Ratio

  	
   

  	
  Commitment

  Fee

  	
   

  	
  Eurodollar

  Rate +

  Letters of

  Credit

  	
   

  	
  Base
  Rate

  +

  	
   

  
	
  1

  	
   

  	
  <0.75:1.00

  	
   

  	
  .20

  	
  %

  	
  1.00

  	
  %

  	
  0

  	
  %

  
	
  2

  	
   

  	
  <1.50:1.00
  but >0.75:1.00

  	
   

  	
  .225

  	
  %

  	
  1.25

  	
  %

  	
  .25

  	
  %

  
	
  3

  	
   

  	
  >1.50:1.00

  	
   

  	
  .25

  	
  %

  	
  1.50

  	
  %

  	
  .50

  	
  %

  






 


Any increase or
decrease in the Applicable Rate resulting from a change in the Consolidated
Senior Leverage Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant
to Section 6.02(b); provided, however, that if a
Compliance Certificate is not delivered when due in accordance with such
Section, then Pricing Level 3 shall apply as of the first Business Day after
the date on which such Compliance Certificate was required to have been
delivered until the date such Compliance Certificate is delivered, at which
time the Pricing Level shall be adjusted to be the Pricing Level based on the
Consolidated Senior Leverage Ratio as set forth in such Compliance
Certificate.  .  The Applicable Rate in effect from the
Closing Date through December 31, 2005 shall be determined based upon
Pricing Level 1.


 


“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 and which Fund is approved by (i) the
Administrative Agent and (ii) unless an Event of Default has occurred and
is continuing, the Borrower (each such approval not to be unreasonably withheld
or delayed).


 


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


 


“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 10.06(b)), and accepted by the Administrative Agent, in
substantially the form of Exhibit E 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, and (b) in
respect of any Synthetic Lease Obligation, 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.


 


“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 for such fiscal year of the Borrower and its
Subsidiaries, 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 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 8.02.


 


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


 


“Base Rate” means for any day
a fluctuating rate per annum equal to the higher of (a) the Federal Funds
Rate plus 1/2 of 1% 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 such
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
Committed Loan” means a Committed Loan that is a Base Rate Loan.


 


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


 


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


 


“Borrower
Materials” has the meaning specified in Section 6.02.


 


“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require.


 


“Business Day”
means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the
state where the Administrative Agent’s Office is located and, if such day
relates to any Eurodollar


 


3





















 


Rate Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.


 


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


 


“Cash
Equivalents” means as to the Borrower and its Subsidiaries, (a) securities
issued or directly and fully guaranteed or insured by the United States of
America and having a maturity of not more than one (1) year from the date
of acquisition; (b) certificates of deposit, time deposits and eurodollar
time deposits with maturities of one (1) year or less from the date of
acquisition, bankers’ acceptances with maturities not exceeding one (1) year
and overnight bank deposits, in each case, (i) with any Lenders or (ii) with
any domestic commercial bank organized under the laws of the United States of
America or any state thereof or a foreign subsidiary of such bank, in each case
having a rating of not less than A or its equivalent by S&P or any
successor and having capital and surplus in excess of $1,000,000,000; (c) certificates
of deposit, time deposits and eurodollar time deposits with maturities of one (1) year
or less from the date of acquisition, bankers’ acceptances with maturities not
exceeding one (1) year and overnight bank deposits, in each case, in an
aggregate amount not to exceed $10,000,000 and with any commercial bank
organized under the laws of a country which is a member of the Organization for
Economic Cooperation and Development, or a political subdivision of such
country, in each case having capital and surplus in excess of $400,000,000; (d) repurchase
obligations with a term of not more than seven (7) days for underlying
securities of the types described in clauses (a), (b) and (c) above;
and (e) any commercial paper or finance company paper issued by (i) any
Lender or any holding company controlling any Lender or (ii) any other
Person that is rated not less than “P-1” or “A-1” or their equivalents by Moody’s
or S&P or their successors.


 


“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 (i) 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 and (ii) John Keane
and any member of his family), 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 securities 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 35% or more of the equity securities 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);


 


4





















 


(b)                                 during any period of 12  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 (excluding
John Keane and any member of his family) 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 equity securities
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) representing 35% or more of the combined
voting power of such securities.


 


“Closing Date”
means the first date all the conditions precedent in Section 4.01
are satisfied or waived in accordance with Section 10.01.


 


“Code”
means the Internal Revenue Code of 1986.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
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.


 


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


 


“Committed Loan”
has the meaning specified in Section 2.01.


 


5





















 


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


 


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


 


“Consolidated
Current Liabilities” means all liabilities and other Indebtedness of the
Borrower and its Subsidiaries on a consolidated basis maturing on demand or
within one (1) year from the date on which Consolidated Current
Liabilities are to be determined, and such other liabilities as may properly be
classified as current liabilities in accordance with GAAP, provided, however, notwithstanding anything to the contrary
contained herein or in GAAP, to the extent a Holdback exists in connection with
any Permitted Acquisition and the Borrower or any Subsidiary is required to
account for the portion of the purchase price not yet paid as a liability, such
amount (which amount shall not exceed the Holdback) shall not be included as a
Consolidated Current Liability hereunder.


 


“Consolidated
EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) in each case to the extent deducted
in the calculation of such Consolidated Net Income and without duplication, (i) depreciation
and amortization for such period, plus (ii) income tax expense for
such period, plus (iii) Consolidated Total Interest Expense paid or
accrued during such period, plus (iv) other noncash charges for
such period, minus (c) to the extent added in computing
Consolidated Net Income, and without duplication, all noncash gains (including
income tax benefits) for such period, in each case as determined in accordance
with GAAP.  For purposes of calculating Consolidated EBITDA for any period in which a
Permitted Acquisition has occurred, Consolidated EBITDA shall be adjusted in a
manner which is reasonable acceptable to the Administrative Agent in all
respects to give effect to the consummation of such Permitted Acquisition on a
pro forma basis as if such Permitted Acquisition had occurred on the first date
of the test period (but without duplication for any adjustments made in the
definition of Consolidated Total Interest Expense and Consolidated Net Income).


 


“Consolidated
Net Income” means the consolidated net income (or deficit) of the Borrower
and its Subsidiaries, after deduction of all expenses, taxes and other proper
charges, determined in accordance with GAAP, after eliminating therefrom all
extraordinary nonrecurring items of income and all extraordinary nonrecurring
noncash items of loss.  For purposes of calculating Consolidated Net
Income for any period in which a Permitted Acquisition has occurred,
Consolidated Net Income shall be adjusted in a manner which is reasonably
acceptable to the Administrative Agent in all respects to give effect to the
consummation of such Permitted Acquisition on a pro forma basis as if such
Permitted Acquisition had occurred on the first date of the test period.


 


“Consolidated
Quick Assets” means all cash, Cash Equivalents and Accounts Receivable of
the Borrower and its Subsidiaries on a consolidated basis that, in accordance
with GAAP, are properly classified as current assets, provided, that Accounts
Receivable shall be included only if good and collectible as determined by the
Borrower in accordance with established practice consistently applied and only
if payable and outstanding not more than 90 days after the invoice


 


6





















 


relating to such Accounts Receivable; and such Accounts Receivable
shall be taken at their face value less reserves determined to be sufficient in
accordance with GAAP; provided, however,
notwithstanding anything to the contrary contained herein or in GAAP, all
amounts representing a Holdback shall not be included as a Consolidated Quick
Asset.


 


“Consolidated
Total Assets” means all assets of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with GAAP.


 


“Consolidated
Total Funded Debt” means, with respect to the Borrower and its
Subsidiaries, the sum, without duplication, of (a) the aggregate amount of
Indebtedness of the Borrower and its Subsidiaries, on a consolidated basis,
relating to (i) the borrowing of money or the obtaining of credit,
including the issuance of notes or bonds, (ii) the deferred purchase price
of assets (other than trade payables incurred in the ordinary course of
business), (iii) Attributable Indebtedness in respect of capital leases
and Synthetic Lease Obligations, and (iv) the
maximum drawing amount of all letters of credit outstanding and bankers
acceptances plus (b) Indebtedness of the type referred to in clause
(a) of another Person guaranteed by the Borrower or any of its
Subsidiaries.


 


“Consolidated Total Interest Expense” means, for any period, the
aggregate amount of interest required to be paid or accrued by the Borrower and
its Subsidiaries during such period on all Indebtedness of the Borrower and its
Subsidiaries outstanding during all or any part of such period, whether such
interest was or is required to be reflected as an item of expense or
capitalized, including payments consisting of interest in respect of
Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations, and including commitment fees, agency fees, facility fees, balance
deficiency fees and similar fees or expenses in connection with the borrowing
of money.  For purposes of calculating
Consolidated Total Interest Expense for any period in which a Permitted
Acquisition has occurred, Consolidated Total Interest Expense shall be adjusted
in a manner which is reasonably acceptable to the Administrative Agent in all
respects to give effect to the consummation of such Permitted Acquisition on a
pro forma basis as if such Permitted Acquisition had occurred on the first date
of the test period


 


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


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto.


 


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


 


“Debtor Relief
Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the


 


7





















 


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 Eurodollar Rate
Loan, the Default Rate shall be an interest rate equal to the interest rate
(including any Applicable Rate) otherwise applicable to such Loan plus 2% per
annum, 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 Committed Loans, participations in L/C Obligations or participations in
Swing Line Loans required to be funded by it hereunder within one Business Day
of the date required to be funded by it hereunder, (b) has otherwise
failed to pay over to the Administrative Agent or any other Lender any other
amount required to be paid by it hereunder within one Business Day of the date
when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency
proceeding.


 


“DeMinimis
Subsidiary” means any Subsidiary (a) the consolidated revenues of
which for the most recent period of four fiscal quarters for which financial
statements have been delivered pursuant to Section 6.01
were not greater than 5% of the Borrower’s consolidated revenues for such
period or (b) the consolidated assets of which as of the end of such
period were not greater than 5% of the Borrower’s consolidated assets as of the
end of such period, provided, however, to
the extent such Subsidiary makes an assignment for the benefit of creditors,
admits in writing its inability to pay or generally fails to pay its debts as
they mature or become due, petitions or applies for the appointment of a
trustee or other custodian, liquidator or receiver of such Subsidiary or of any
substantial part of its assets, or shall commence any case or proceeding under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against such Subsidiary or such Subsidiary shall indicate
its approval thereof, consent thereto or acquiesce therein, or a decree or
order is entered appointing any such trustee, custodian, liquidator or receiver
or adjudicating such Subsidiary bankrupt or insolvent (collectively, an “Insolvency Event”) and such Insolvency Event
could reasonably be expected to have a Material Adverse Effect, such Subsidiary
shall not be considered a DeMinimis Subsidiary hereunder.


 


“Designated
Event” has the meaning given to such term in the Subordinated Indenture.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.


 


8





















 


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


 


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


 


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


 


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


 


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


 


“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.


 


“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 Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).


 


“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in


 


9





















 


Section 4001(a)(2) of ERISA) or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in reorganization;
(d) the filing of a notice of intent to terminate, the treatment of a Plan
amendment as a termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the
Borrower or any ERISA Affiliate.


 


“Eurodollar
Rate” means, for any Interest Period with respect to a Eurodollar 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 Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period.  If such rate is
not available at such time for any reason, then the “Eurodollar Rate” for such
Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period.


 


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


 


“Event of
Default” has the meaning specified in Section 8.01.


 


“Excluded Taxes”
means, with respect to the Administrative Agent, any Lender, the L/C Issuer or
any other recipient of any payment to be made by or on account of any
obligation of the Borrower 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 10.13),
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 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).


 


10





















 


“Existing
Credit Agreement” means that certain Revolving Credit Agreement dated as of
February 28, 2003 among the Borrower, Bank of America, N.A. (as successor
by merger to Fleet National Bank), as agent, and a syndicate of lenders, as
amended.


 


“Existing Letters of
Credit” means, collectively, (a) that certain Bank Guarantee No. GT001445/05
issued on July 14, 2005 in favor of Public Transport Ticketing Body
trading as Transport Ticketing Authority in the face amount of 30,000,000
Australian Dollars; (b) that certain Bank Guarantee No. GT001446/05
issued on July 14, 2005 in favor of Public Transport Ticketing Body
trading as Transport Ticketing Authority in the face amount of 15,000,000
Australian Dollars; (c) that certain letter of credit No. 64144489
issued on February 10, 2005 in favor of Marlboro Building AS in the face
amount of $285,232.50; and (d) that certain Bank Guarantee No. GT001456/05
in the face amount of 55,000 Australian Dollars.


 


“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 September 15, 2005, among the Borrower,
the Administrative Agent and the Arranger.


 


“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.


 


“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.


 


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


 


11





















 


“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).


 


“Granting
Lender” has the meaning specified in Section 10.06(h).


 


“Guarantee”
means, as to any Person, any (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness 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 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.


 


“Guarantors”
means, collectively, all Material Subsidiaries of the Borrower other than
Worldzen and any Subsidiary of Worldzen which is also a Material Subsidiary (a “Worldzen Subsidiary”), provided, however, to the extent Worldzen becomes a wholly-owned
Subsidiary of the Borrower, Worldzen shall and shall cause each Worldzen
Subsidiary, promptly (but in any event within ten (10) Business Days) upon
becoming a wholly-owned Subsidiary of the Borrower, become a Guarantor
hereunder.


 


“Guaranty”
means, collectively, (a) the Guaranty dated or to be dated on or prior to
the Closing Date made by the Guarantors in favor of the Administrative Agent
and the Lenders, substantially in the form of Exhibit F; and (b) the
Guaranties dated as of the date required by Section 6.12
hereof made by the applicable Guarantors in favor of the Administrative Agent
and the Lenders, substantially in the form of Exhibit F.


 


“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,


 


12





















 


infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.


 


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


 


(a)                                  all obligations of such Person for borrowed
money and all obligations of such Person evidenced by bonds, debentures, notes,
loan agreements or other similar instruments;


 


(b)                                 all direct or contingent obligations of
such Person arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties and similar instruments (for the
avoidance of doubt, surety bonds shall not be considered Indebtedness
hereunder);


 


(c)                                  net obligations of such Person under any
Swap Contract;


 


(d)                                 all obligations of such Person to pay the
deferred purchase price of property or services (other than (i) trade
accounts payable in the ordinary course of business and, in each case, not past due for more than 90 days after the date on
which such trade account payable was created unless the same are either (x)
being disputed in good faith and for which adequate reserves are being
maintained or (y) are subject to an agreement for longer terms with a trade
vendor and are within such terms; and (ii) any portion of the purchase
price a Person is entitled to withhold from the seller of assets for a period
of time in order to potentially offset against indemnity claims such Person may
have against such seller, so long as such amount is not a form of financing all
or any portion of the purchase price of the assets being sold (a “Holdback”));


 


(e)                                  indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;


 


(f)                                    capital leases and Synthetic Lease
Obligations;


 


(g)                                 all obligations of such Person to
purchase, redeem, retire, defease or otherwise make any payment in respect of
any Equity Interest 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;


 


(h)                                 all sales by such Person of (i) accounts
or general intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of money or (iii) other
receivables (collectively “receivables”), whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement, and
together with any obligation of such Person to pay any discount, interest,
fees, indemnities, penalties, recourse, expenses or other amounts in connection
therewith;


 


13





















 


(i)                                     all Guarantees of such Person in respect
of any of the foregoing.


 


For all purposes
hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general partner
or a joint venturer, unless such Indebtedness is expressly made non-recourse to
such Person.  The amount of any net
obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date. 
The amount of any capital lease or Synthetic Lease Obligation as of any
date shall be deemed to be the amount of Attributable Indebtedness in respect
thereof as of such date.


 


“Indemnified
Taxes” means Taxes other than Excluded Taxes.


 


“Indemnitees”
has the meaning specified in Section 10.04(b).


 


“Indenture
Trustee” means Wachovia National Bank.


 


“Information”
has the meaning specified in Section 10.07.


 


“Intangible
Assets” means assets that are considered to be intangible assets under
GAAP.


 


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan,
the last day of each Interest Period applicable to such Loan and the Maturity
Date; provided, however, that if any Interest Period for a
Eurodollar Rate Loan exceeds three months, the respective dates that fall every
three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including 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 Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one, two, three or six months
thereafter, as selected by the Borrower in its Committed Loan Notice; provided
that:


 


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


 


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


 


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


 


“Internal
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.


 


14





















 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
capital stock or other securities 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) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. 
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.


 


“Investment
Policy Guideline” means the Investment Policy of the Borrower as in effect
on the Closing Date, a copy of which has been delivered to the Administrative
Agent, or such subsequent Investment Policy Guideline as provided to the
Administrative Agent and which is reasonably acceptable to the Administrative
Agent.


 


“IP Rights”
has the meaning specified in Section 5.17.


 


“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.


 


“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
Committed Borrowing.


 


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


 


15





















 


“L/C Issuer”
means Bank of America (including its branches and Affiliates), in each case in
its capacity as issuer of Letters of Credit hereunder, or any successor issuer
of Letters of Credit hereunder.


 


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


 


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the Swing Line Lender.


 


“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 letter of credit issued hereunder and shall include the
Existing Letters of Credit.  A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.


 


“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 seven 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).


 


“Letter of
Credit Sublimit” means an amount equal to $50,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Aggregate Commitments.


 


“Leverage Ratio”
means, as at any date of determination, the ratio of (a) Consolidated
Total Funded Debt outstanding on such date to (b) Consolidated EBITDA for
the Reference Period ending on such date (or if such date is not a fiscal
quarter end date, the fiscal quarter most recently ended).


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or other security agreement 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).


 


16





















 


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


 


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


 


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


 


“Material
Adverse Effect” means (a) a material adverse effect upon, the
operations, business, properties, liabilities (actual or contingent), condition
(financial or otherwise) or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the ability of
the Borrower or the Borrower and the Guarantors, taken as a whole, to perform
its or their obligations under any Loan Document to which it is or they are 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
Subsidiary”
means, as of any date of determination, any Domestic Subsidiary with respect to
which any of the following criteria has been met: (a) the aggregate
revenue generated by such Domestic Subsidiary for the relevant Reference Period
equals or exceeds an amount equal to five percent (5%) of the consolidated
aggregate revenues generated by the Borrower and its Subsidiaries for such
Reference Period, or (b) the aggregate book value of the assets of such
Domestic Subsidiary equals or exceeds five percent (5%) of the then current
book value of the aggregate assets of the Borrower and its Subsidiaries, or (c) is
otherwise required to become a Guarantor hereunder.  A Domestic Subsidiary that is a Material
Subsidiary at any date pursuant to this definition shall continue to be or be
deemed to be a Material Subsidiary at all times thereafter, without regard to
the results of any future re-determination pursuant to this definition.


 


“Maturity Date”
means September 15, 2010.


 


“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 Liquidity”
means, as of any date of determination, the sum of the Borrower’s cash and Cash
Equivalents as of such date, plus the aggregate amount available to the
Borrower to be borrowed under this Agreement as of such date.


 


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


 


“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, or arising under any Swap Contract
with a Lender, in each case whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to


 


17





















 


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.


 


“Open Market Purchases”
means the purchase by the Borrower of all or any portion of the Subordinated
Notes from the holders thereof so long as (a) the total, cumulative amount
of the consideration paid for all such purchases from and after the
effectiveness of the Indenture does not exceed, in the aggregate, $50,000,000
in each fiscal year, and the Subordinated Notes so purchased in each case are
promptly cancelled by the Borrower; (b) the total cumulative amount of the
consideration paid for each Subordinated Note does not exceed 110% of the face
amount of each such Subordinated Note plus accrued and unpaid interest thereon;
(c) the Borrower has no Loans outstanding both immediately prior to and
after giving effect to such repurchase; and (d) the Borrower has
demonstrated to the satisfaction of the Administrative Agent that the Borrower’s
Unencumbered Cash both immediately prior to and after giving effect to each
such repurchase is not less than $35,000,000.


 


“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.


 


“Outstanding
Amount” means (i) with respect to Committed Loans and Swing Line Loans
on any date, the aggregate outstanding principal amount thereof after giving
effect to any borrowings and prepayments or repayments of Committed Loans and
Swing Line Loans, as the case may be, 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.


 


“Participant”
has the meaning specified in Section 10.06(d).


 


“PBGC”
means the Pension Benefit Guaranty Corporation.


 


18





















 


“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
Acquisition” has the meaning specified in Section 7.04(c).


 


“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 Code or Title IV of ERISA, any ERISA
Affiliate.


 


“Platform”
has the meaning specified in Section 6.02.


 


“Reference
Period” means of any date of determination, the period of four (4) consecutive
fiscal quarters of the Borrower and its Subsidiaries ending on such date, or if
such date is not a fiscal quarter end date, the period of four (4) consecutive
fiscal quarters most recently ended (in each case treated as a single accounting
period).


 


“Register”
has the meaning specified in Section 10.06(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.


 


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


 


“Reportable
Event” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.


 


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


 


“Required
Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, if the commitment of each Lender to make
Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have
been terminated pursuant to Section 8.02, Lenders holding in the
aggregate more than 50% of the Total Outstandings (with the aggregate amount of
each Lender’s risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the
Total Outstandings held or


 


19





















 


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


 


“Restricted
Payment” means any (a) dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
Equity Interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other Equity Interest,
or on account of any return of capital to the Borrower’s stockholders, partners
or members (or the equivalent Person thereof), other than a dividend on or in
respect of any shares of any class of capital stock of the Borrower payable
solely in shares of common stock of the Borrower; (b) payment or
prepayment by the Borrower or its Subsidiaries to the Borrower’s shareholders
(or other equity holders) and, if a Subsidiary’s shareholder is a Person other
than the Borrower or another Subsidiary, to such shareholder (or other equity
holder) (a “Nonaffiliated Shareholder”)
unless an equal and ratable payment is simultaneously being made to such
Subsidiary’s other shareholders which are not Nonaffiliated Shareholders, (c) derivatives
or other transactions with any financial institution, commodities or stock
exchange or clearinghouse (a “Derivatives  Counterparty”)
obligating the Borrower or any Subsidiary to make payments to such Derivatives
Counterparty as a result of any change in market value of any Capital Stock of
the Borrower or such Subsidiary or (d) payment in respect of any phantom
stock plan or similar interests.


 


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


 


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


 


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


 


“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.


 


“Senior
Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated
Total Funded Debt outstanding on such date less the aggregate amount of
Subordinated Debt outstanding on such date, to (b) Consolidated EBITDA for
the Reference Period ending on such date (or if such date is not a fiscal
quarter end date, the fiscal quarter most recently ended).


 


20





















 


“SPC” has
the meaning specified in Section 10.06(h).


 


“Subordinated
Debt” means unsecured Indebtedness of the Borrower that is expressly
subordinated and made junior to the payment and performance in full of the
Obligations, as evidenced as such by the Subordinated Indenture or by another
written instrument containing subordination provisions and terms and conditions
in form and substance approved by the Lenders in advance in writing.


 


“Subordinated
Debt Documents” means, collectively, the Subordinated Purchase Agreement,
the Subordinated Indenture, the Subordinated Registration Rights Agreement, and
the Subordinated Notes.


 


“Subordinated
Indenture” means the Indenture dated as of June 18, 2003 between the
Borrower and the Indenture Trustee relating to the Subordinated Notes.


 


“Subordinated
Notes” means the Convertible Subordinated Debentures due 2013 in the
aggregate principal amount of not more than $150,000,000 issued pursuant to the
Subordinated Indenture, which shall have an interest rate applicable thereto of
not more than five percent (5%) per annum.


 


“Subordinated
Purchase Agreement” means the Purchase Agreement, dated June 12 2003,
between the Borrower and Morgan Stanley & Co. Incorporated, Wachovia
Securities and certain other parties thereto as initial purchasers, relating to
the issuance and sale by the Borrower of the Subordinated Notes.


 


“Subordinated
Registration Rights Agreement” means Registration Rights Agreement, dated June 18,
2003, between the Borrower and Morgan Stanley & Co. Incorporated, Wachovia
Securities and certain other parties thereto as initial purchasers, relating to
the issuance and sale by the Borrower of the Subordinated Notes.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of
securities or other interests having ordinary voting power for the election of
directors or other governing body (other than securities or interests having
such power only by reason of the happening of a contingency) are at the time
beneficially owned, or the management of which is otherwise controlled,
directly, or indirectly through one or more intermediaries, or both, by such
Person.  Unless otherwise specified, all
references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a
Subsidiary or Subsidiaries of the Borrower.


 


“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)


 


21





















 


any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any form of
master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or
any other master agreement (any such master agreement, together with any
related schedules, a “Master Agreement”), including any such obligations
or liabilities under any Master Agreement.


 


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


 


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


 


“Swing Line
Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.


 


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


 


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


 


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


 


“Swing Line
Sublimit” means an amount equal to the lesser of (a) $10,000,000 and (b) the
Aggregate Commitments.  The Swing Line
Sublimit is part of, and not in addition to, the Aggregate Commitments.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).


 


“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.


 


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


 


22





















 


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


 


“Unencumbered
Cash” means the aggregate amount of cash and Cash Equivalents of the
Borrower and its Subsidiaries which is not subject to any Lien or other claim
whatsoever.


 


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


 


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


 


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


 


“Worldzen”
means Keane Worldzen, Inc., a Delaware corporation and a Subsidiary of 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 tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


(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.”


 


23





















 


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


 


1.03                        Accounting Terms.  (a) 
Generally.  All accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP 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, except as otherwise specifically
prescribed herein.


 


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


 


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


 


1.05                        Times of Day. 
Unless otherwise specified, all references herein to times of day shall
be references to 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 or decreases, as the case
may be, in the stated amount thereof, the amount of such Letter of Credit shall
be deemed to be the maximum stated amount of such Letter of Credit after giving
effect to all such increases or decreases, as the case may be, whether or not
such maximum stated amount is in effect at such time.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01                        Committed Loans. 
Subject to the terms and conditions set forth herein, each Lender
severally agrees to make loans (each such loan, a “Committed Loan”) to
the Borrower from time to time, on any Business Day during the Availability
Period, in an aggregate amount


 


24





















 


not to exceed at any time
outstanding the amount of such Lender’s Commitment; provided, however,
that after giving effect to any Committed Borrowing, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
aggregate Outstanding Amount of the Committed 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 Commitment.  Within the limits of each Lender’s
Commitment, and subject to the other terms and conditions hereof, the Borrower
may borrow under this Section 2.01, prepay under Section 2.05,
and reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.


 


2.02                        Borrowings, Conversions and
Continuations of Committed Loans.


 


(a)                                  Each Committed Borrowing, each conversion
of Committed Loans from one Type to the other, and each continuation of
Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to
the Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 11:00 a.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Committed Loans, and (ii) on the requested date of any
Borrowing of Base Rate Committed 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
Committed Loan Notice, appropriately completed and signed by a Responsible
Officer of the Borrower.  Each Borrowing
of, conversion to or continuation of Eurodollar Rate Loans shall be in a
principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof.  Except as provided in Sections
2.03(c) and 2.04(c), each Borrowing of or conversion to Base
Rate Committed Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. 
Each Committed Loan Notice (whether telephonic or written) shall specify
(i) whether the Borrower is requesting a Committed Borrowing, a conversion
of Committed Loans from one Type to the other, or a continuation of Eurodollar
Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the
principal amount of Committed Loans to be borrowed, converted or continued, (iv) the
Type of Committed Loans to be borrowed or to which existing Committed Loans are
to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto.  If the
Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice
or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed Loans shall be made as, or
converted to, Base Rate Loans.  Any such
automatic conversion to Base Rate Loans shall be effective as of the last day
of the Interest Period then in effect with respect to the applicable Eurodollar
Rate Loans.  If the Borrower requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any
such Committed Loan Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


(b)                                 Following receipt of a Committed Loan
Notice, the Administrative Agent shall promptly notify each Lender of the amount
of its Applicable Percentage of the applicable Committed Loans, and if no
timely notice of a conversion or continuation is provided by the Borrower, the
Administrative Agent shall notify each Lender of the details of any automatic
conversion to Base Rate Loans described in the preceding subsection.  In the case of a


 


25





















 


Committed Borrowing, each
Lender shall make the amount of its Committed Loan available to the
Administrative Agent in immediately available funds at the Administrative Agent’s
Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice.  Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
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 Committed Loan Notice with respect to such Borrowing is given by the
Borrower, there are L/C Borrowings outstanding, then the proceeds of such
Borrowing, first, shall be applied to the payment in full of any such
L/C Borrowings, and second, shall be made available to the Borrower as
provided above.


 


(c)                                  Except as otherwise provided herein, a
Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan. 
During the existence of a Default, no Loans may be requested as,
converted to or continued as Eurodollar Rate Loans without the consent of the
Required Lenders.


 


(d)                                 The Administrative Agent shall promptly
notify the Borrower and the Lenders of the interest rate applicable to any
Interest Period for Eurodollar Rate Loans upon determination of such interest
rate.  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 Committed
Borrowings, all conversions of Committed Loans from one Type to the other, and
all continuations of Committed Loans as the same Type, there shall not be more
than six Interest Periods in effect with respect to Committed Loans which are
Eurodollar Rate Loans.


 


2.03                        Letters of Credit.


 


(a)                                  The Letter of Credit Commitment.


 


(i)                                     Subject to the terms and conditions set
forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements
of the Lenders set forth in this Section 2.03, (1) from time
to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the account of
the Borrower or 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
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, (x) the Total Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed 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


 


26





















 


Loans shall not
exceed such Lender’s 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)                              except in the case of the Existing
Letters of Credit or as set forth in 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 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 Lenders have approved such expiry date (and, for the avoidance of doubt,
all Lenders have approved the expiry date on the Existing Letters of Credit).


 


(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 $100,000, in the case of a commercial Letter of Credit,
or $500,000, in the case of a standby Letter of Credit, provided, however, that
notwithstanding the foregoing, the L/C


 


27





















 


Issuer
does agree to issue not more than ten (10) Letters of Credit (either
commercial or standby or a combination) in an initial stated amount of not less
than $50,000;


 


(D)                               such Letter of Credit is to be
denominated in a currency other than Dollars or a currency approved by the
Administrative Agent;


 


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


 


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


 


(iv)                              Other than in the case of an Existing
Letter of Credit, 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)                                 Other than in the case of an Existing
Letter of Credit, 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 IX
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article IX included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally
provided herein with respect to the L/C Issuer.


 


(b)                                 Procedures for Issuance and Amendment of
Letters of Credit; 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 two Business Days (or such later date and
time as the Administrative Agent and the L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or date
of amendment, as the case may be.  In the
case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application 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) 


 


28





















 


the expiry date
thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters
as the L/C Issuer may require.  In the
case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the L/C
Issuer may require.  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 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 IV shall not then be satisfied, then, subject to the
terms and conditions hereof, the L/C Issuer shall, on the requested date, issue
a Letter of Credit for the account of the Borrower (or 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 Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Lender’s 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


 


29





















 


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 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 4.02 is not then
satisfied, and in each such 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 a drawing under such Letter of Credit, the
L/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date of
any payment by the L/C Issuer under a Letter of Credit (each such date, an “Honor
Date”), the Borrower shall reimburse the L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the L/C
Issuer by such time, the Administrative Agent shall promptly notify each Lender
of the Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed
Amount”), and the amount of such Lender’s Applicable Percentage
thereof.  In such event, the Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate Loans to
be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02 (other than the delivery of a Committed Loan
Notice).  Any notice given by the L/C
Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)                                  Each Lender 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 Lender that so makes funds
available shall be deemed to have made a Base Rate Committed 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 Committed Borrowing of Base Rate Loans
because the conditions set forth in Section 4.02 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


 


30





















 


demand (together
with interest) and shall bear interest at the Default Rate.  In such event, each Lender’s payment to the
Administrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shall
be deemed payment in respect of its participation in such L/C Borrowing and
shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.


 


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


 


(v)                                 Each Lender’s obligation to make
Committed 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 Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than
delivery by the Borrower of a Committed Loan Notice).  No such making of an L/C Advance shall
relieve or otherwise impair the obligation of the Borrower to reimburse the L/C
Issuer for the amount of any payment made by the L/C Issuer under any Letter of
Credit, together with interest as provided herein.


 


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


 


(d)                                 Repayment of Participations.


 


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


 


31





















 


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 10.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its 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 Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. 
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


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


 


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


 


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


 


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


 


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


 


(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, except for circumstances or
happenings arising solely out of the gross negligence or willful misconduct of
the L/C Issuer,.


 


32





















 


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


 


(f)                                    Role of L/C Issuer.  Each Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the L/C Issuer shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.  None of the L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent, participant
or assignee of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of bad faith, 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 bad faith, willful
misconduct or gross negligence or the L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions of a
Letter of Credit.  In furtherance and not in limitation of the
foregoing, the L/C Issuer may accept documents that appear on their face to be
in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


(g)                                 Cash Collateral. 
Upon the request of the Administrative Agent, (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 remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 8.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section 2.03,
Section 2.05 and Section 8.02(c),
“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


 


33





















 


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.  To the extent the Borrower is
required to Cash Collateralize the then Outstanding Amount of all L/C
Obligations, the Borrower shall, at the time of such requirement, grant to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing.  Cash
Collateral shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America.


 


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


 


(i)                                     Letter of Credit Fees. 
The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage a Letter of Credit fee
(the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate times the daily amount
available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (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.  If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect.  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)                                     Fronting Fee and Documentary and
Processing Charges Payable to L/C Issuer.  The Borrower
shall pay directly to the L/C Issuer for its own account a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the Fee
Letter, computed on the daily amount available to be drawn under such Letter of
Credit on a quarterly basis in arrears. 
Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect of the most recently-ended
quarterly period (or portion thereof, in the case of the first payment),
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on
demand.  For purposes of computing the
daily amount available to be drawn under any Letter of Credit, the amount of
such Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation,
amendment and other processing fees, and other standard costs and charges, of
the L/C Issuer relating to letters of credit as from time to time in
effect.  Such customary fees and standard
costs and charges are due and payable on demand and are nonrefundable.


 


34





















 


(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)                                  The Swing Line. 
Subject to the terms and conditions set forth herein, the Swing Line
Lender agrees, in reliance upon the agreements of the other Lenders set forth
in this Section 2.04, to make loans (each such loan, a “Swing
Line Loan”) to the Borrower from time to time on any Business Day during
the Availability Period in an aggregate amount not to exceed at any time
outstanding the amount of the Swing Line Sublimit, notwithstanding the fact
that such Swing Line Loans, when aggregated with the Applicable Percentage of
the Outstanding Amount of Committed Loans and L/C Obligations of the Lender
acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Swing Line
Loan, (i) the Total Outstandings shall not exceed the Aggregate
Commitments, and (ii) the aggregate Outstanding Amount of the Committed
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 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 Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Applicable Percentage times the amount of such Swing Line Loan.


 


(b)                                 Borrowing Procedures. 
Each Swing Line Borrowing shall be made upon the Borrower’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, 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 of $500,000, and (ii) the requested borrowing date,
which shall be a Business Day.  Each such
telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Promptly after receipt by the
Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing)
that the Administrative Agent has also received such Swing Line Loan Notice
and, if not, the Swing Line Lender will notify the Administrative Agent (by
telephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received
notice (by telephone or in writing) from the


 


35





















 


Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of Section 2.04(a), or (B) that
one or more of the applicable conditions specified in Article IV is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Borrower at its office by crediting the account of the
Borrower on the books of the Swing Line Lender in immediately available funds.


 


(c)                                  Refinancing of Swing Line Loans.


 


(i)                                     The Swing Line Lender at any time in its
sole and absolute discretion may request, on behalf of the Borrower (which
hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount equal to
such 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 Committed Loan Notice
for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish the
Borrower with a copy of the applicable Committed Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Applicable Percentage of the amount specified in such Committed Loan Notice
available to the Administrative Agent in immediately available funds for the
account of the Swing Line Lender at the Administrative Agent’s Office not later
than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Lender that so
makes funds available shall be deemed to have made a Base Rate Committed 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 Committed Borrowing in accordance with Section 2.04(c)(i),
the request for Base Rate Committed Loans submitted by the Swing Line Lender as
set forth herein shall be deemed to be a request by the Swing Line Lender that
each of the Lenders fund its risk participation in the relevant Swing Line Loan
and each Lender’s payment to the Administrative Agent for the account of the
Swing Line Lender pursuant to Section 2.04(c)(i) shall be
deemed payment in respect of such participation.


 


(iii)                               If any Lender fails to make available to
the Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.04(c) by the time specified in Section 2.04(c)(i),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
Swing Line Lender in


 


36





















 


accordance with
banking industry rules on interbank compensation.  A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest
error.


 


(iv)                              Each Lender’s obligation to make
Committed Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any
other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to
make Committed Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 4.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line
Loans, together with interest as provided herein.


 


(d)                                 Repayment of Participations.


 


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


 


(ii)                                  If any payment received by the Swing Line
Lender in respect of principal or interest on any Swing Line Loan is required
to be returned by the Swing Line Lender under any of the circumstances
described in Section 10.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its 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 Federal Funds
Rate.  The Administrative Agent will make
such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this
clause shall survive the payment in full of the Obligations and the termination
of this Agreement.


 


(e)                                  Interest for Account of Swing Line Lender. 
The Swing Line Lender shall be responsible for invoicing the Borrower
for interest on the Swing Line Loans. 
Until each Lender funds its Base Rate Committed Loan 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.


 


37





















 


2.05                        Prepayments.


 


(a)                                  The Borrower may, upon notice to the
Administrative Agent, at any time or from time to time voluntarily prepay
Committed Loans in whole or in part without premium or penalty (which amounts
may be reborrowed hereunder subject to the terms and conditions of this
Agreement); provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (B) on
the date of prepayment of Base Rate Committed Loans; (ii) any prepayment
of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof; and (iii) any prepayment
of Base Rate Committed 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 Committed Loans to be
prepaid.  The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender’s 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 Eurodollar 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
Committed Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(b)                                 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. on the date of the prepayment, and (ii) any such prepayment
shall be in a minimum principal amount of $100,000.  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.


 


(c)                                  If for any reason the Total Outstandings
at any time exceed the Aggregate Commitments then in effect, the Borrower shall
immediately prepay 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(c) unless after the prepayment
in full of the Loans the Total Outstandings exceed the Aggregate Commitments
then in effect.


 


2.06                        Termination or Reduction of
Commitments.  The Borrower may, upon notice to the
Administrative Agent, terminate the Aggregate Commitments, or from time to time
permanently reduce the Aggregate Commitments; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m.
five Business Days prior to the date of termination or reduction, (ii) any
such partial reduction shall be in an aggregate amount of $5,000,000 or any
whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall
not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments, and (iv) if, after giving effect
to any reduction of the Aggregate Commitments, the Letter of Credit Sublimit or
the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such
Sublimit shall be automatically reduced by the amount of such excess.  The


 


38





















 


Administrative Agent will
promptly notify the Lenders of any such notice of termination or reduction of
the Aggregate Commitments.  Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. 
All fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.


 


2.07                        Repayment of Loans.


 


(a)                                  Subject in all cases to the provisions of
this Section 2.07(b), the Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Committed Loans outstanding on
such date.


 


(b)                                 To the extent that the Borrower is
obligated under any Subordinated Debt Document (or any agreement, instrument or
document refinancing or replacing any Subordinated Debt Document) in an
aggregate principal amount of $50,000,000 or greater to make any principal
repayments thereunder (any such date on which the Borrower is obligated to make
any such payment being hereinafter referred to as the “Put Date”), the Borrower shall, by not later than the date which is
three months prior to the applicable Put Date, either (i) terminate all
Commitments hereunder, repay to the Lenders on such date all principal and
accrued interest on the Loans, all accrued fees and other amounts owing
hereunder and Cash Collateralize all LC Obligations; or (ii) demonstrate
to the reasonable satisfaction of the Lender that the Borrower’s Net Liquidity
is not less than $200,000,000 and, in addition, at all times from such date
through the date on which such payment is made, such payment obligation
otherwise ceases to exist or such payment obligation is deferred until a date
which is more than three months from the applicable initial Put Date, maintain
such Net Liquidity of not less than $200,000,000.


 


(c)                                  The Borrower shall repay each Swing Line
Loan on the earlier to occur of (i) the date ten Business Days after such
Loan is made and (ii) the Maturity Date.


 


2.08                        Interest.


 


(a)                                  Subject to the provisions of subsection (b) below,
(i) each Eurodollar Rate Loan shall bear interest on the outstanding
principal amount thereof for each Interest Period at a rate per annum equal to
the Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) each
Base Rate Committed 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; 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


 


39





















 


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 Applicable Rate times the actual daily amount by which the
Aggregate Commitments exceed the sum of (i) the Outstanding Amount of
Committed Loans and (ii) the Outstanding Amount of L/C Obligations.  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 IV is not met, and shall be due and
payable quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date.  The commitment
fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.


 


(b)                                 Other Fees.  (i) The
Borrower shall pay to the Arranger and the Administrative Agent for their own respective
accounts fees in the amounts and at the times specified in the Fee Letter.  Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.


 


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


 


2.10                        Computation of Interest and Fees. 
All computations of interest for Base Rate Loans when the Base Rate is
determined by Bank of America’s “prime rate” shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the


 


40





















 


basis of a 365-day
year).  Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.12(a), bear interest for one day.  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 Note, which shall evidence such Lender’s Loans in addition to such
accounts or records.  Each Lender may
attach schedules to its Note and endorse thereon the date, 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,
all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed,
at the Administrative Agent’s Office in Dollars and in immediately available
funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly
distribute to each Lender its 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 after 2:00 p.m. shall be
deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue.  If any
payment to be made by the Borrower shall come due on a day other than a
Business Day,


 


41





















 


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)                                 (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 Committed Borrowing of Eurodollar Rate Loans
(or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00
noon on the date of such Committed Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Committed
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 a Committed 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 Committed Borrowing
available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount in immediately available funds with interest thereon,
for each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (A) in
the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation and (B) in the case
of a payment to be made by the Borrower, the interest rate applicable to 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 Committed Borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Committed Loan included in such Committed
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
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
immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation.


 


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


 


42





















 


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


 


(d)                                 Obligations of Lenders Several.  The
obligations of the Lenders hereunder to make Committed Loans, to fund
participations in Letters of Credit and Swing Line Loans and to make payments
pursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make any
Committed Loan, to fund any such participation or to make any payment under Section 10.04(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 Committed Loan,
to purchase its participation or to make its payment under Section 10.04(c).


 


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


 


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 Committed 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 Committed 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 Committed Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders,
or make such other adjustments as shall be equitable, so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Committed Loans and other amounts owing them, provided that:


 


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


 


(ii)                                  the provisions of this Section shall
not be construed to apply to (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 Committed 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).


 


43





















 


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


 


2.14                        Increase in Commitments.


 


(a)                                  Request for Increase.  Provided
there exists no Default, upon notice to the Administrative Agent (which shall
promptly notify the Lenders), the Borrower may on a one-time basis, request an
increase in the Aggregate Commitments by an amount not exceeding $50,000,000; provided
that any such request for an increase shall be in a minimum amount of
$5,000,000.  At the time of sending such
notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which
shall in no event be less than ten Business Days from the date of delivery of
such notice to the Lenders).


 


(b)                                 Lender Elections to Increase. 
Each Lender shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether
by an amount equal to, greater than, or less than its Applicable Percentage of
such requested increase.  Any Lender not
responding within such time period shall be deemed to have declined to increase
its Commitment.


 


(c)                                  Notification by Administrative Agent;
Additional Lenders.  The Administrative Agent shall notify the
Borrower and each Lender of the Lenders’ responses to each request made
hereunder.  To achieve the full amount of
a requested increase and subject to the approval of the Administrative Agent
and the L/C Issuer (which approvals shall not be unreasonably withheld), the
Borrower may also invite additional Eligible Assignees to become Lenders
pursuant to a joinder agreement in form and substance satisfactory to the
Administrative Agent and its counsel.


 


(d)                                 Effective Date and Allocations. 
If the Aggregate Commitments are increased in accordance with this
Section, the Administrative Agent and the Borrower shall determine the
effective date (the “Increase Effective Date”) and the final allocation
of such increase.  The Administrative
Agent shall promptly notify the Borrower and the Lenders of the final
allocation of such increase and the Increase Effective Date.


 


(e)                                  Conditions to Effectiveness of Increase. 
As a condition precedent to such increase, the Borrower shall deliver to
the Administrative Agent a certificate of each Loan Party dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the
resolutions adopted by such Loan Party approving or consenting to such
increase, and (ii) in the case of the Borrower, certifying that, before
and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are
true and correct in all material respects on and as of the Increase Effective
Date (and, to the extent any such representation and/or warranty is not true
and/or correct, that portion which is not true or correct, as the case may be,
could not reasonably be expected to have a Material Adverse Effect), except


 


44





















 


(1) to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they are true and correct in all material respects as of such
earlier date (and, to the extent any such representation and/or warranty was
not true and/or correct, that portion which was not true or correct, as the
case may be, could not reasonably be expected to have a Material Adverse
Effect), (2) to the extent of changes resulting from transactions
contemplated or permitted by this Agreement and the other Loan Documents, and (3) that
for purposes of this Section 2.15, the representations and
warranties contained in subsections (a) and (b) of Section 5.05
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 6.01, and (B) no
Default exists.  The Borrower shall prepay
any Committed Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Committed Loans ratable with any revised
Applicable Percentages arising from any nonratable increase in the Commitments
under this Section.


 


(f)                                    Conflicting Provisions. 
This Section shall supersede any provisions in Sections 2.13
or 10.01 to the contrary.


 


ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01                        Taxes.


 


(a)                                  Payments Free of Taxes. 
Any and all payments by or on account of any obligation of the Borrower
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 the Borrower 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) the Borrower shall make such deductions and (iii) the
Borrower shall timely pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.


 


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


 


(c)                                  Indemnification by the Borrower. 
The Borrower 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


 


45





















 


Administrative Agent on
its own behalf or on behalf of a Lender or the L/C Issuer, which certificate
shall contain a reasonably detailed description of the amount of such payments
and the reason for the payments, shall be prima facie evidence of the amounts
owed.


 


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


 


(e)                                  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


 


46





















 


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 the Borrower or with respect to which
the Borrower has paid additional amounts pursuant to this Section, it shall pay
to the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this
Section with respect to the Taxes or Other Taxes giving rise to such
refund), net of all reasonable out-of-pocket expenses of the Administrative
Agent, such Lender or the L/C Issuer, as the case may be, and without interest
(other than any interest paid by the relevant Governmental Authority with
respect to such refund), provided that the Borrower, upon the request of
the Administrative Agent, such Lender or the L/C Issuer, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to the Administrative Agent,
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.


 


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


 


3.03                        Inability to Determine Rates. 
If the Required Lenders determine that for any reason in connection with
any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the
London interbank eurodollar market for the applicable amount and Interest
Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do
not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan , or (c) the Eurodollar Rate for any requested Interest Period with respect
to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan, the Administrative Agent will
promptly so notify the Borrower and each Lender.  Thereafter, the


 


47





















 


obligation of the Lenders
to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice.  Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Committed
Borrowing of Base Rate Loans in the amount specified therein.


 


3.04                        Increased Costs; Reserves on
Eurodollar Rate Loans.


 


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


 


(i)                                     impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement contemplated by Section 3.04(e))
or the L/C Issuer;


 


(ii)                                  subject any Lender or the L/C Issuer to
any tax of any kind whatsoever with respect to this Agreement, any Letter of
Credit, any participation in a Letter of Credit or any Eurodollar 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); or


 


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


 


48





















 


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 reasonably detailed 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 prima
facie evidence of the amounts owed.  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 Business 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 or reduced rates incurred or
reductions suffered more than 90 days prior to the date 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 90 day period referred to above shall be extended to include the
period of retroactive effect thereof).


 


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


 


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; or


 


49





















 


(c)                                  any assignment of a Eurodollar Rate Loan
on a day other than the last day of the Interest Period therefor as a result of
a request by the Borrower pursuant to Section 10.13;


 


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


 


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


 


3.06                        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, if requested by the Borrower, 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.


 


(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
or Section 3.02, the Borrower may replace such Lender in accordance
with Section 10.13.


 


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


 


ARTICLE IV.

CONDITIONS PRECEDENT TO Credit Extensions


 


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


 


(a)                                  The Administrative Agent’s receipt of the
following, each of which shall be originals or telecopies (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible
Officer of the signing Loan Party, each dated the Closing Date (or, in


 


50





















 


the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent and each of the
Lenders:


 


(i)                                     executed counterparts of this Agreement
and the Guaranty, sufficient in number for distribution to the Administrative
Agent, each Lender and the Borrower;


 


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


 


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


 


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


 


(v)                                 a favorable opinion of Wilmer Cutler
Pickering Hale and Dorr LLP, counsel to the Loan Parties, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit G
and such other matters concerning the Loan Parties and the Loan Documents as
the Required Lenders may reasonably request;


 


(vi)                              a certificate signed by a Responsible
Officer of the Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there
has been no event or circumstance since the date of the Audited Financial
Statements that has had or could be reasonably expected to have, either
individually or in the aggregate, a Material Adverse Effect; and (C) a
calculation of the Senior Leverage Ratio as of the last day of the fiscal
quarter of the Borrower most recently ended prior to the Closing Date;


 


(vii)                           evidence that all insurance required to
be maintained pursuant to the Loan Documents has been obtained and is in
effect;


 


(viii)                        evidence that the Existing Credit
Agreement has been or concurrently with the Closing Date is being terminated
and all Liens securing obligations under the Existing Credit Agreement have
been or concurrently with the Closing Date are being released; and


 


51





















 


(ix)                                such other assurances, certificates,
documents, consents or opinions as the Administrative Agent, the L/C Issuer,
the Swing Line Lender or the Required Lenders reasonably may require.


 


(b)                                 Any fees required to be paid on or before
the Closing Date shall have been paid.


 


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


 


Without limiting
the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


4.02                        Conditions to all Credit
Extensions.  The obligation of each Lender to honor any
Request for Credit Extension (other than a Committed Loan Notice requesting
only a conversion of Committed Loans to the other Type, or a continuation of
Eurodollar Rate Loans) is subject to the following conditions precedent:


 


(a)                                  The representations and warranties of the
Borrower and each other Loan Party contained in Article V or any
other Loan Document, or which are contained in any document furnished at any
time under or in connection herewith or therewith, shall be true and correct in
all material respects on and as of the date of such Credit Extension (and, to
the extent any such representation and/or warranty is not true and/or correct,
that portion which is not true or correct, as the case may be, could not
reasonably be expected to have a Material Adverse Effect), except (i) to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct in all material
respects as of such earlier date (and, to the extent any such representation
and/or warranty was not true and/or correct, that portion which was not true or
correct, as the case may be, could not reasonably be expected to have a
Material Adverse Effect), (ii) to the extent of changes resulting from
transactions contemplated or permitted by this Agreement and the other Loan
Documents and (iii) that for purposes of this Section 4.02,
the representations and warranties contained in subsections (a) and (b) of
Section 5.05 shall be deemed to refer to the most recent statements
furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.


 


(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.


 


52





















 


Each Request for
Credit Extension (other than a Committed Loan Notice requesting only a
conversion of Committed Loans to the other Type or a continuation of Eurodollar
Rate Loans) submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a) and (b) have
been satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE V.

REPRESENTATIONS AND WARRANTIES


 


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


 


5.01                        Existence, Qualification and
Power; Compliance with Laws.  Each Loan
Party and each Subsidiary thereof (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, (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, and (d) is in compliance with all Laws; except in each case
referred to in clause (b)(i), (c) or (d), to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.


 


5.02                        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 and will not (a) contravene
the terms of any of such Person’s Organization Documents; (b) conflict
with or result in any breach or contravention of, or the creation of any Lien
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 unless such conflict or
contravention could not reasonably be expected to have a Material Adverse
Effect; or (c) violate any Law, except where such violation could not
reasonably be expected to have a Material Adverse Effect.  Each Loan Party and each Subsidiary thereof
is in compliance with all Contractual Obligations referred to in clause (b)(i),
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


5.03                        Governmental Authorization; Other
Consents.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person is necessary or required in connection
with the execution, delivery or performance by, or enforcement against, any
Loan Party of this Agreement or any other Loan Document.


 


5.04                        Binding Effect. 
This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that
is party thereto.  This Agreement
constitutes, and each other Loan Document when so delivered


 


53





















 


will constitute, a legal,
valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms.


 


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


 


(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, material commitments and Indebtedness.


 


(b)                                 The unaudited consolidated balance sheet
of the Borrower and its Subsidiaries dated June 30, 2005, and the related
consolidated statements of income
or operations, shareholders’ equity and cash flows for the fiscal quarter ended
on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present the financial condition of 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 absence of footnotes and to normal year-end audit adjustments.


 


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


 


(d)                                 Since the date of the Audited Financial
Statements, (i) no Internal Control Event involving fraud has occurred;
and (ii) no Internal Control Event resulting from a material weakness in
the Borrower’s internal controls over financial reporting which could
reasonably be expected to have a Material Adverse Effect has occurred.


 


(e)                                  The consolidated pro forma balance sheet
of the Borrower and its Subsidiaries as at June 30, 2005, and the related
consolidated pro forma statements of income and cash flows of the Borrower and
its Subsidiaries for the 2005 through 2010 fiscal years, certified by the chief
financial officer of the Borrower, copies of which have been furnished to the
Administrative Agent, fairly present the consolidated pro forma financial
condition of the Borrower and its Subsidiaries as at such date and the
consolidated pro forma results of operations of the Borrower and its
Subsidiaries for the period ended on such date, all in accordance with GAAP.


 


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


 


54





















 


(g)                                 The Borrower on a consolidating basis, and
the Borrower and its Subsidiaries, on a consolidated basis, both before and
after giving effect to the transactions contemplated by this Agreement, the
other Loan Documents and all contribution arrangements among the Borrower and
its Subsidiaries (a) are solvent, (b) the fair value of the property
of such Person(s) exceeds its or their total liabilities (including contingent
liabilities but without duplication of any underlying liability related
thereto), (c) the present fair saleable value on a going concern basis of
the assets of such Person(s) is not less than the amount required to pay its or
their probable liabilities on its or their debts as they become absolute and
mature, (d) do(es) not intend to, and do(es) not believe that it or they
will, incur debts or liabilities beyond its or their ability to pay as such
debts and liabilities mature, and (e) is or are not engaged, and is or are
not about to engage, in business or a transaction for which its or their
property would constitute unreasonably small capital.


 


5.06                        Litigation.  There are no actions, suits,
proceedings, governmental investigations, claims or disputes pending or, to the
knowledge of the Borrower 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) questions the validity of this
Agreement or any other Loan Document, or any of the transactions contemplated
hereby, or (b) except as specifically disclosed in Schedule 5.06,
either individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect.


 


5.07                        No Default. 
Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.  No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.


 


5.08                        Ownership of Property; Liens. 
Each of the Borrower and each Subsidiary 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 Liens permitted by Section 7.01.


 


5.09                        Environmental Compliance. 
The Borrower and its Subsidiaries conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and claims alleging
potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof
the Borrower has reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


5.10                        Insurance. 
The properties of the Borrower and its Subsidiaries are insured with
financially sound and reputable insurance companies, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
the Borrower or the applicable Subsidiary operates.


 


55





















 


5.11                        Taxes. 
The Borrower and its Subsidiaries have filed all Federal, state and
other tax returns and reports required to be filed, and have paid all Federal,
state and other taxes, assessments, fees and other governmental charges levied
or imposed upon them or their properties, income or assets otherwise due and
payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP or where the failure to file any such returns
or reports, or pay any such taxes, assessments, fees or charges could not
reasonably be expected to have a Material Adverse Effect.  There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse
Effect.


 


5.12                        ERISA Compliance.


 


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


 


(b)                                 There are no pending or, to the best
knowledge of the Borrower, threatened claims, actions or lawsuits, or action by
any Governmental Authority, with respect to any Plan that could reasonably be
expected to have a Material Adverse Effect. 
There has been no prohibited transaction or violation of 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)                                  Except as could not reasonably be
expected to have a Material Adverse Effect, (i) no ERISA Event has
occurred or is reasonably expected to occur; (ii) no Pension Plan has any
Unfunded Pension Liability; (iii) neither the Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability under
Title IV of ERISA with respect to any Pension Plan (other than premiums due and
not delinquent under Section 4007 of ERISA); (iv) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could
reasonably likely be subject to Sections 4069 or 4212(c) of ERISA.


 


5.13                        Subsidiaries; Equity Interests. 
The Borrower has no Subsidiaries other than those specifically disclosed
in Part (a) of Schedule 5.13 (as the same may be updated
from time to time in accordance with Section 6.13
hereof), and all of the outstanding Equity Interests in such Subsidiaries have
been validly issued, are fully paid and nonassessable and are owned by a Loan
Party free and clear of all Liens.  The
Borrower has no equity investments in any other corporation or entity other
than those specifically disclosed in Part(b) of Schedule 5.13
or otherwise made after the date hereof to the extent permitted by Section 7.02
hereof.  All of the


 


56





















 


outstanding Equity
Interests in the Borrower have been validly issued and are fully paid and
nonassessable.


 


5.14                        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.


 


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


 


5.15                        Disclosure. 
None of this Agreement or any of the other Loan Documents or any other
information in writing delivered pursuant to the Loan Documents contains any
untrue statement of a material fact or omits to state a material fact (known to
the Borrower or any of its Subsidiaries in the case of any document or
information not furnished by it or any of its Subsidiaries) necessary in order
to make the statements herein or therein not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.


 


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


 


5.17                        Intellectual Property; Licenses,
Etc.  The Borrower and its Subsidiaries own, or
possess the right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, franchises, licenses and other intellectual
property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses, without known
conflict with the rights of any other Person.


 


5.18                        Status of Loan as Senior Debt. 
All Indebtedness of the Borrower and each of its Subsidiaries to the
Lenders and the Administrative Agent in respect of the Loans and the L/C
Obligations constitutes “Senior Indebtedness” or “Senior Debt” (or the
analogous term used therein) under the terms of the Subordinated Debt Documents
or of any other instrument evidencing or pursuant to which there is issued
Indebtedness which purports to be Subordinated Debt of the Borrower or any
Subsidiary.


 


57





















 


5.19                        Subordinated Debt Documents. 
Each of the representations and warranties made by the Borrower in any
of the Subordinated Debt Documents was true and correct in all material
respects on the date such representations and warranties were made and/or
deemed to have been made.


 


5.20                        No Other Senior Debt.  The Borrower (a) has not designated any
Indebtedness of the Borrower or any of its Subsidiaries as, and has no, “Designated
Senior Indebtedness” (or the analogous term used therein) for purposes of (and
as defined in) the Subordinated Indenture, other than the Obligations and (b) has
no Indebtedness under a “senior credit facility” (or the analogous term used
therein) as those terms are defined in the Subordinated Indenture other than
the Obligations.


 


ARTICLE VI.

AFFIRMATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, and 6.03)
cause each Subsidiary to:


 


6.01                        Financial Statements. 
Deliver to the Administrative Agent, in form and detail reasonably
satisfactory to the Administrative Agent and the Required Lenders:


 


(a)                                  as soon as available, but in any event
within 90 days after the end of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, 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;


 


(b)                                 as soon as available, but in any event
within 45 days after the end of each fiscal quarter of each fiscal year of the
Borrower, a consolidated balance sheet of the Borrower and its Subsidiaries as
at the end of such fiscal quarter, and the related consolidated statements of
income or operations, shareholders’ equity and cash flows for such fiscal
quarter and for the portion of 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 prepared in accordance with
GAAP (subject only to normal year-end audit adjustments and the absence of
footnotes), 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


 


58





















 


accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes;
and


 


(c)                                  from time to time upon the reasonable
request of the Administrative Agent, projections of the Borrower and its
Subsidiaries updating those projections previously delivered to the
Administrative Agent on or prior to the Closing Date or, if applicable,
updating any later such projections delivered in response to a request pursuant
to this Section 6.01(c).


 


As to any information
contained in materials furnished pursuant to Section 6.02(d), the
Borrower shall not be separately required to furnish such information under
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.


 


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


 


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


 


(b)                                 promptly, such additional information
regarding the business or financial 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;


 


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


 


(d)                                 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 6.01 or any other clause of
this Section 6.02; and


 


(e)                                  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.


 


Documents required
to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address listed on Schedule 10.02;
or (ii) on which such documents are posted on the Borrower’s behalf on an
Internet or intranet website, if


 


59





















 


any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the
Administrative Agent); provided that: (i) the Borrower shall
deliver paper copies of such documents to the Administrative Agent if the
Administrative Agent requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative
Agent and (ii) the Borrower shall notify the Administrative Agent (by
telecopier or electronic mail) of the posting of any such documents and provide
to the Administrative Agent by electronic mail electronic versions (i.e.,
soft copies) of such documents. 
Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance
Certificates required by Section 6.02(b) to the Administrative
Agent.  Except for such Compliance
Certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any
event shall have no responsibility to monitor compliance by the Borrower with
any such request for delivery, and each Lender shall be solely responsible for
requesting delivery to it or maintaining its copies of such documents.


 


The Borrower
hereby acknowledges that (a) the Administrative Agent and/or the Arranger
will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) 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 (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, the Arranger, the L/C Issuer 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 10.07); (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion
of the Platform designated “Public Investor;” and (z) the Administrative Agent
and the Arranger shall be entitled to treat any Borrower Materials that are not
marked “PUBLIC” as being suitable only for posting on a portion of the Platform
not designated “Public Investor.”


 


6.03                        Notices. 
Promptly notify the Administrative Agent:


 


(a)                                  of the occurrence of any Event of Default
or, upon the Borrower’s knowledge of its existence, any Default;


 


(b)                                 of any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect, including (i) breach
or non-performance of, or any default under, a Contractual Obligation of the
Borrower or any Subsidiary; (ii) any litigation, investigation, proceeding
or suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material adverse
development in, any litigation or proceeding affecting the Borrower or any
Subsidiary, including pursuant to any applicable Environmental Laws;


 


60





















 


(c)                                  of the occurrence of any ERISA Event;


 


(d)                                 of any material change in accounting
policies or financial reporting practices by the Borrower or any Subsidiary; and


 


(e)                                  of the occurrence of any Internal Control
Event.


 


Each notice
pursuant to this Section 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 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan
Document that have been breached.


 


6.04                        Payment of Obligations. 
Pay and discharge as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities,
assessments and governmental charges or levies upon it or its properties or
assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful
claims which, if unpaid, would by law become a Lien upon its property (other
than Liens permitted hereunder); 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.


 


6.05                        Preservation of Existence, Etc.  (a) Preserve,
renew and maintain in full force and effect its legal existence and good
standing under the Laws of the jurisdiction of its organization except in a
transaction permitted by Section 7.04 or 7.05,  provided that nothing in this Section 6.05
shall prevent the Borrower from discontinuing the operation and maintenance of
any of its properties or any of those of its Subsidiaries if such
discontinuance is, in the judgment of the Borrower, desirable in the conduct of
its or their business and that do not in the aggregate have a Material Adverse
Effect; (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (c) preserve
or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a
Material Adverse Effect.


 


6.06                        Maintenance of Properties.  (a) Maintain,
preserve and protect all of its properties and equipment necessary in the
operation of its business in good working order and condition, ordinary wear
and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof, except, in each case, where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


6.07                        Maintenance of Insurance. 
Maintain with financially sound and reputable insurance companies,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such


 


61





















 


other Persons and providing for not less than 30 days’ prior notice to
the Administrative Agent of termination, lapse or cancellation of such
insurance.


 


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


 


6.09                        Books and Records.  (a) 
Maintain proper books of record and account, in which full, true and correct
entries in conformity with GAAP consistently applied shall be made of all
financial transactions and matters involving the assets and business of the
Borrower or such Subsidiary, as the case may be; and (b) maintain such
books of record and account in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
the Borrower or such Subsidiary, as the case may be.


 


6.10                        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 such reasonable
times during normal business hours, upon reasonable advance notice to the
Borrower and, so long as no Default or Event of Default has occurred and is
continuing, not more than once each calendar year for the Administrative Agent
and the Lender, which annual visit shall be coordinated through and by the
Administrative Agent and which annual visit shall be at the expense of the
Lenders participating in such visit; 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.


 


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


 


6.12                        Additional Guarantors. 
Notify the Administrative Agent at the time that any Person becomes a
Domestic Subsidiary, and, to the extent such Person is a Material Subsidiary,
immediately cause such Person to (a) become a Guarantor by executing and
delivering to the Administrative Agent a counterpart of the Guaranty or such
other document as the Administrative Agent shall deem appropriate for such
purpose, and (b) deliver to the Administrative Agent documents of the
types referred to in clauses (iii) and (iv) of Section 4.01(a) and
favorable opinions of counsel to such Person (which shall cover, among other things,
the legality, validity, binding effect and enforceability of the documentation
referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent. 
In addition, if, within 120 days after the end of any Reference Period,
it is determined that either (a) the aggregate revenue generated by all
Domestic Subsidiaries which are not Guarantors, other than Worldzen and the
Worldzen Subsidiaries, to exceed an amount equal to ten percent (10%) of the
consolidated aggregate revenues generated by the Borrower and its Subsidiaries
for the Reference Period most recently ended or (b) the aggregate book
value of the aggregate assets of


 


62





















 


all Domestic Subsidiaries
which are not Guarantors, other than Worldzen and the Worldzen Subsidiaries, to
exceed ten percent (10%) of the then current book value of all assets of the
Borrower and its Subsidiaries on a consolidated basis, then the Borrower shall,
by the end of such 120 day period, require certain Domestic Subsidiaries which
are not Guarantors to become Guarantors hereunder (and otherwise comply with
the conditions of this Section 6.12) to the extent necessary to
comply at all times with the preceding sentence, and such Subsidiary shall
thereafter remain a Guarantor hereunder.


 


6.13                        New Subsidiaries. 
If, after the Closing Date, the Borrower or any of its Subsidiaries
creates or acquires, either directly or indirectly, any Subsidiary, it will
immediately notify the Administrative Agent of such creation or acquisition, as
the case may be, and provide the Administrative Agent and the Lenders with an
updated Schedule 5.13 hereto and, to
the extent required by this Agreement, take all other action required by Section 6.12 hereof.


 


6.14                        Worldzen Ownership. 
The Borrower will at all times own not less than 53% of Equity Interests
of Worldzen and not less than 80% of the voting stock of Worldzen.


 


6.15                        Post-Closing Matters. 
By not later than (a) September 30, 2005 deliver to the Administrative
Agent such documents and certifications as the Administrative Agent may
reasonably require to evidence that Anstec, Inc. is duly organized or
formed, and that Anstec, Inc. is validly existing, in good standing and
qualified to engage in business in each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification, except to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect; and (b) November 15,
2005, deliver to the Administrative Agent a opinion of local counsel in each of
Virginia and Washington to each of Anstec, Inc. (in Virginia) and Keane
Care, Inc. (in Washington), addressed to the Administrative Agent and each
Lender, as to such matters concerning each of Anstec, Inc. and Keane Care, Inc.
as the Administrative Agent may reasonably request.


 


ARTICLE VII.

NEGATIVE COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall
remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly:


 


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


 


(a)                                  Liens pursuant to any Loan Document;


 


(b)                                 Liens existing on the date hereof and
listed on Schedule 7.01 and any renewals or extensions thereof, provided
that (i) the property covered thereby is not materially changed, (ii) the
principal amount secured or benefited thereby is not increased, and (iii) any
renewal or extension of the obligations secured or benefited thereby is
permitted by Section 7.03(b);


 


63





















 


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


 


(d)                                 carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course
of business in existence less than 120 days from the date of creation thereof
in respect of obligations which are not overdue 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 (provided such Lien shall no longer be permitted immediately upon the
commencement of proceedings to foreclose any Lien if such Lien secures any
material amount, or the foreclosure of such Lien could reasonably be expected
to have a Material Adverse Effect);


 


(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;


 


(g)                                 easements, rights-of-way, zoning
restrictions and other similar encumbrances affecting real property provided
that none of such Liens (A) interferes materially with the use of the
property affected in the ordinary conduct of the business of the Borrower and
its Subsidiaries, and (B) individually or in the aggregate have a Material
Adverse Effect;


 


(h)                                 Liens securing judgments for the payment
of money not constituting an Event of Default under Section 8.01(h);


 


(i)                                     Liens securing Indebtedness permitted
under Section 7.03(e); provided that (i) such Liens do
not at any time encumber any property other than the property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the
cost or fair market value, whichever is lower, of the property being acquired
on the date of acquisition;


 


(j)                                     Liens in favor of the Borrower on all or
part of the assets of Subsidiaries of the Borrower securing Indebtedness owing
by Subsidiaries of the Borrower to the Borrower; and


 


(k)                                  Liens consisting of cash collateral
deposited with the issuer of any letter of credit permitted pursuant to Section 7.03(j).


 


7.02                        Investments. 
Make any Investments, except:


 


(a)                                  Investments held by the Borrower or such
Subsidiary in the form of Cash Equivalents;


 


(b)                                 Investments existing on
the date hereof and listed on Schedule 7.02 hereto;


 


64





















 


(c)                                  Investments made in connection with the
Borrower’s Investment Policy Guideline, provided, notwithstanding such
Investment Policy Guidelines, the Borrower shall not be permitted to make any
Investment in any Subsidiary which is not a Guarantor unless expressly
permitted by Section 7.02(d)(iv) and Section 7.02(e) hereof);


 


(d)                                 Investments with respect to (i) Indebtedness
permitted by Section 7.03(f)(i) and
(ii) so long as such entities remain
Subsidiaries of the Borrower and are also Guarantors hereunder; (ii) Indebtedness
permitted by Section 7.03(f)(iii); (iii) Indebtedness
permitted by Section 7.03(g) and (iv) Indebtedness
permitted by Section 7.03(h);


 


(e)                                  Investments in Subsidiaries which are not
Guarantors hereunder, provided that the aggregate amount of all such
Investments made pursuant to this Section 7.02(e) plus any
Investments made in such Subsidiaries pursuant to Section 7.03(h) shall
not exceed $35,000,000;


 


(f)                                    Investments consisting of promissory
notes received as proceeds of asset dispositions permitted by Section 7.05
and Investments consisting of a Permitted Acquisition to the extent made in
accordance with Section 7.04;


 


(g)                                 Investments consisting of Restricted
Payments to the extent permitted by Section 7.06;


 


(h)                                 advances to officers, directors and
employees of the Borrower and Subsidiaries in an aggregate amount not to exceed
$2,000,000 at any time outstanding, for travel, entertainment, relocation and
analogous ordinary business purposes;


 


(i)                                     Investments of the Borrower in any
Guarantor and Investments of any Guarantor in the Borrower or in another
Guarantor;


 


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


 


(k)                                  Guarantees permitted by Section 7.03;
and


 


(l)                                     other Investments not exceeding
$10,000,000 in the aggregate in any fiscal year of the Borrower.


 


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


 


(a)                                  Indebtedness under the Loan Documents;


 


(b)                                 Indebtedness outstanding on the date
hereof and listed on Schedule 7.03 and any refinancings,
refundings, renewals or extensions thereof; provided that (i) the principal amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal
or extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in
connection with such refinancing and by an amount equal to any existing
commitments unutilized thereunder and (ii) the
terms relating to


 


65





















 


principal
amount, amortization, maturity, collateral (if any) and subordination (if any),
and other material terms taken as a whole, of any such refinancing, refunding,
renewing or extending Indebtedness, and of any agreement entered into and of
any instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lenders than the terms of any
agreement or instrument governing the Indebtedness being refinanced, refunded,
renewed or extended and the interest rate applicable to any such refinancing,
refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;


 


(c)                                  Guarantees of the Borrower or any
Guarantor in respect of Indebtedness otherwise permitted hereunder of the
Borrower or any other Guarantor;


 


(d)                                 obligations (contingent or otherwise) of
the Borrower or any Subsidiary existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held
or reasonably anticipated by such Person, or changes in the value of securities
issued by such Person, and not for purposes of speculation or taking a “market
view;” and (ii) such Swap Contract does not contain any provision
exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;


 


(e)                                  Indebtedness in respect of capital
leases, Synthetic Lease Obligations and purchase money obligations for fixed or
capital assets within the limitations set forth in Section 7.01(i);
provided, however, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $2,500,000;


 


(f)                                    Indebtedness of (i) a Guarantor to
the Borrower, so long as such Person is a Guarantor hereunder and remains a
Subsidiary of the Borrower; (ii) the Borrower to a Guarantor, so long as
such Guarantor remains a Subsidiary of the Borrower; and (iii) a
Subsidiary which is not a Guarantor to another Subsidiary which is also not a
Guarantor;


 


(g)                                 Indebtedness of the Borrower or any
Guarantor to any Subsidiary which is not a Guarantor consisting of an
intercompany loan so long as (i) the aggregate amount of all such
Indebtedness under this Section 7.03(g) does
not exceed $10,000,000 at any time; and (ii) the payment obligations
thereunder are subordinated to the prior payment in full in cash of all
Obligations pursuant to subordination terms acceptable to the Administrative
Agent;


 


(h)                                 Indebtedness of a Subsidiary which not a
Guarantor to the Borrower or a Guarantor so long as the aggregate amount of all
such Indebtedness under this Section 7.03(h) and
the aggregate amount of all such Investments made pursuant to Section 7.02(e) does
not exceed $35,000,000 at any time;


 


(i)                                     third party Indebtedness of the Borrower
or any Subsidiary incurred or assumed in connection with any Permitted
Acquisition (excluding Indebtedness consisting of earnout arrangements) so long
as the aggregate amount of all such Indebtedness under this Section 7.03(i) does not exceed
$10,000,000 at any time (and, for the avoidance of doubt, the parties hereto
hereby acknowledge and agree that Indebtedness of a Person which was incurred
by a


 


66





















 


Person prior to such
Person becoming a Subsidiary hereunder shall be considered Indebtedness assumed
by such Subsidiary in connection with a Permitted Acquisition);


 


(j)                                     Indebtedness of the Borrower and any
Subsidiary incurred in connection with the issuance by a financial institution
(other than the Administrative Agent) of a letter of credit or other bank
guarantee in a currency other than Dollars for the account of the Borrower or
such Subsidiary, so long as (i) the Borrower had, prior to incurrence such
Indebtedness, requested that such letter of credit be issued under this Credit
Agreement in a currency other than Dollars and the Administrative Agent did not
approve such currency; and (ii) the aggregate amount of all such
Indebtedness under this Section 7.03(j)
does not exceed $5,000,000 at any time;


 


(k)                                  endorsements for collection, deposit or
negotiation and warranties of products or services, in each case incurred in
the ordinary course of business;


 


(l)                                     Indebtedness of the Borrower or any
Subsidiary consisting of earnout arrangements so long as (i) such
Indebtedness is unsecured and is not in any way senior in right of payment to
the Obligations; and (ii) the aggregate amount of all such Indebtedness
under this Section 7.03(l) does not exceed 2.5% of the Borrower’s
Consolidated Total Assets at any time; and


 


(m)                               unsecured Indebtedness in an aggregate
principal amount not to exceed $15,000,000 at any time outstanding.


 


7.04                        Fundamental Changes. 
Merge, dissolve, liquidate, consolidate with or into another Person, or
agree to or effect any asset acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of business consistent with past
practices) or Dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:


 


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


 


(b)                                 any Subsidiary may Dispose of all or
substantially all of its assets (upon voluntary liquidation or otherwise) to
the Borrower or to another Subsidiary; provided that if the transferor
in such a transaction is a Guarantor, then the transferee must either be the
Borrower or a Guarantor; and


 


(c)                                  the Borrower or any Subsidiary may effect
any asset or stock acquisition by the of Persons (or, in the case of an asset
acquisition, assets of a Person) in the same or similar line of business as the
Borrower (a “Permitted Acquisition”) so
long as (i) the Borrower has provided the Administrative Agent with prior
written notice of such acquisition, which notice shall include a reasonably
detailed description of such Permitted Acquisition; (ii) the board of
directors and (if required by applicable law) the shareholders, or the
equivalent thereof, of each of the Borrower or the applicable Subsidiary and of
the Person to be acquired has approved such merger, consolidation or
acquisition; (iii) any Indebtedness incurred or assumed in connection with
such


 


67





















 


Permitted Acquisition
(including, without limitation, any assumed Indebtedness, earnout arrangements,
seller Indebtedness and non-compete payments) shall have been permitted to be
incurred or assumed pursuant to Section 7.03
of this Agreement; (iv) (1) to the extent the aggregate purchase price
for such Permitted Acquisition which is payable in anything other than the
Equity Interests of the Borrower (and such Equity Interests shall have no
redemption or repurchase rights prior to a date which is one (1) year
after the Maturity Date and shall not have the ability to convert into any form
of Indebtedness) is greater than $20,000,000, the Borrower has provided to the
Administrative Agent, at least three (3) days prior to the consummation of
such Permitted Acquisition, (x) a Compliance Certificate prepared on a pro
forma basis demonstrating compliance with the financial covenants set forth in Section 7.13 hereof both before and after
giving effect to such Permitted Acquisition (with the Borrower being permitted
to include in such pro forma statements reasonable cost savings, expenses and
other income statement or operating statement adjustments which are
attributable to the change in ownership and/or management resulting from such
Permitted Acquisition and are effected on the closing of such Permitted
Acquisition, as may be reasonably acceptable to the Administrative Agent, which
adjustments shall be deemed to have been realized on the consummation of such
Permitted Acquisition); (y) a certificate from the chief financial officer of
the Borrower evidencing that the Borrower’s Senior Leverage Ratio (calculated
on a pro forma basis) both before and after giving effect to such Permitted
Acquisition is not greater than 1.50:1.00; and (z) a certificate from the chief
financial officer of the Borrower to the effect that the Borrower on a
consolidating basis, and the Borrower and its Subsidiaries, on a consolidated
basis, will be solvent both before and after consummating the Permitted
Acquisition; and (2) to the extent the aggregate purchase price for such
Permitted Acquisition which is payable in anything other than the Equity
Interests of the Borrower (and such Equity Interests shall have no redemption
or repurchase rights prior to a date which is one (1) year after the
Maturity Date and shall not have the ability to convert into any form of
Indebtedness) is equal to or less than $20,000,000, the Borrower covenants that
(x) the Borrower is in compliance with the financial covenants set forth in Section 7.13 hereof both before and after
giving effect to such Permitted Acquisition (with the Borrower being permitted
to include in such pro forma calculations reasonable cost savings, expenses and
other income statement or operating statement adjustments which are
attributable to the change in ownership and/or management resulting from such
Permitted Acquisition and are effected on the closing of such Permitted
Acquisition, as may be reasonably acceptable to the Administrative Agent, which
adjustments shall be deemed to have been realized on the consummation of such
Permitted Acquisition); (y) the Borrower’s Senior Leverage Ratio (calculated on
a pro forma basis) both before and after giving effect to such Permitted
Acquisition is not greater than 1.50:1.00; and (z) the Borrower on a
consolidating basis, and the Borrower and its Subsidiaries, on a consolidated
basis, will be solvent both before and after consummating the Permitted
Acquisition; (v) the business to be acquired would not subject the
Administrative Agent or any Lender to regulatory or third party approvals in
connection with the exercise of any of its rights and remedies under this
Agreement or any other Loan Document; and (vi) no contingent obligations
or liabilities will be incurred or assumed in connection with such acquisition
which could reasonably be expected to have a Material Adverse Effect.


 


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


 


68





















 


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


 


(b)                                 Dispositions of inventory in the ordinary
course of business;


 


(c)                                  Dispositions of equipment or real
property to the extent that (i) such property is exchanged for credit against
the purchase price of similar replacement property or (ii) the proceeds of
such Disposition are reasonably promptly applied to the purchase price of such
replacement property;


 


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


 


(e)                                  Dispositions permitted by Section 7.04;


 


(f)                                    Disposition by the Borrower of that
certain real property set forth on Schedule 7.05
hereto;


 


(g)                                 non-exclusive licenses of IP Rights in
the ordinary course of business; and


 


(h)                                 Dispositions by the Borrower and its
Subsidiaries not otherwise permitted under this Section 7.05; provided
that (i) at the time of such Disposition, no Default shall exist or would
result from such Disposition and (ii) the aggregate book value of all
property Disposed of in reliance on this clause (h) during the term of
this Agreement does not exceed, in the aggregate, five percent (5%) of the
Borrower’s Consolidated Total Assets as of the date of each such sale;


 


provided, however, that any Disposition
pursuant to clauses (b) through (h) shall be for fair market value.


 


7.06                        Restricted Payments. 
Declare or make, directly or indirectly, any Restricted Payment, or
incur any obligation (contingent or otherwise) to do so, except that, so long
as no Default shall have occurred and be continuing at the time of any action described
below or would result therefrom:


 


(a)                                  each Subsidiary may make Restricted
Payments to the Borrower, the Guarantors and any other Person that owns an
Equity Interest in such Subsidiary, ratably according to their respective
holdings of the type of Equity Interest in respect of which such Restricted
Payment is being made;


 


(b)                                 the Borrower and each Subsidiary may
declare and make dividend payments or other distributions payable solely in the
common stock or other common Equity Interests of such Person;


 


(c)                                  the Borrower and each Subsidiary may
purchase, redeem or otherwise acquire Equity Interests issued by it with the
proceeds received from the substantially concurrent issue of new shares of its
common stock or other common Equity Interests; and


 


69





















 


(d)                                 the Borrower or any of its Subsidiaries
may repurchase the Equity Interests of the Borrower, provided (i) no
Default or Event of Default has occurred and is continuing or would occur as a
result thereof and (ii) the Borrower has demonstrated to the reasonable
satisfaction of the Administrative Agent that the Senior Leverage Ratio
(calculated on a pro forma basis) both before and after giving effect to such
repurchase is not greater than 1.50:1.00.


 


7.07                        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
date hereof or any business substantially related or incidental thereto.


 


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


 


7.09                        Burdensome Agreements. 
Enter into any Contractual Obligation (other than this Agreement or any
other Loan Document) that (a) limits the ability (i) of any Subsidiary
to make Restricted Payments to the Borrower or any Guarantor or to otherwise
transfer property to the Borrower or any Guarantor, (ii) of any Subsidiary
to Guarantee the Indebtedness of the Borrower or (iii) of the Borrower or
any Subsidiary to create, incur, assume or suffer to exist Liens on property of
such Person; provided, however, that this clause (iii) shall
not prohibit (1) any negative pledge incurred or provided in favor of any
holder of Indebtedness permitted under Section 7.03(e) solely
to the extent any such negative pledge relates to the property financed by or
the subject of such Indebtedness or (2) customary anti-assignment provisions contained in leases and licensing
agreements entered into by the Borrower or such Subsidiary in the ordinary
course of its business; or (b) requires the grant of a Lien to
secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person.


 


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


 


7.11                        Subordinated Debt. 
The Borrower will not, and will not permit any of its Subsidiaries, to
amend, supplement or otherwise modify the terms of any of the Subordinated Debt
Documents or prepay, redeem or repurchase (or offer to prepay, redeem or
repurchase) any of the Subordinated Debt, provided,
however, (a) nothing contained in this Section 7.11
shall be intended to prohibit the payment of any of the Subordinated Notes when
the same shall become due and payable or subject to a mandatory redemption or
repurchase by the terms thereof, other than a prohibition which may exist due
to the existence of a Default or Event of Default hereunder which permits the
blockage of any such payments by the terms of the Subordinated Debt Documents;
and (b) so long as no Default or Event of Default has occurred and is
continuing or would exist as a result thereof, the Borrower shall be permitted
to make Open Market Purchases to the extent permitted by the terms of the
Subordinated Indenture.


 


70





















 


7.12                        Senior Debt. 
The Borrower will not (a) in any manner designate or permit to
exist any Indebtedness of the Borrower or any of its Subsidiaries as “Designated
Senior Indebtedness” (or any analogous term) for purposes of (and as defined
in) the Subordinated Indenture, other than the Indebtedness arising under this
Agreement and the Guaranties, or (b) incur or permit to exist any
Indebtedness under any “senior credit facility” (or any analogous term) as such
terms are defined in the Subordinated Indenture, other than the Indebtedness
arising under this Agreement and the Guaranties and the other Obligations.


 


7.13                        Financial Covenants.


 


(a)                                  Leverage Ratio.  Permit the Leverage Ratio at any time to be
greater than the 3.50:1.00.


 


(b)                                 Senior Leverage Ratio.  Permit the Senior Leverage Ratio at any time
to be greater than 2.00:1.00.


 


(c)                                  Quick Ratio.  Permit the ratio of Consolidated Quick Assets
to the sum of Consolidated Current Liabilities plus Total Outstandings to be
less than 1.25:1.00 at any time.


 


ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES


 


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


 


(a)                                  Non-Payment. 
The Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C
Obligation, or (ii) within three days after the same becomes due, any interest
on any Loan or on any L/C Obligation, or any 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. 
The Borrower fails to perform or observe any term, covenant or agreement
contained in any of Section 6.01, 6.02, 6.03, 6.05(a),
6.10, 6.11, 6.12, 6.14 or 6.15 or Article VII, or any Guarantor fails to perform or
observe any similar term, covenant or agreement contained in the Guaranty;
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 30 days; or


 


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


 


(e)                                  Cross-Default.  (i) the
holders of all or any part of the Subordinated Debt shall accelerate the
maturity of all or any part of the Subordinated Debt; or the Subordinated Debt
shall be (or shall be required at such time to be) prepaid, redeemed or
repurchased in whole or in


 


71





















 


part (provided the
payment of any of the Subordinated Notes when the same shall become due and
payable or subject to a mandatory redemption or repurchase by the terms thereof
shall not be a default hereunder unless the payments to the holders thereof
have been blocked pursuant to the subordination provisions contained in the
Subordinated Debt Documents); or the Borrower or any of its Subsidiaries shall
be or become required under the terms of any of the Subordinated Debt Documents
to prepay, redeem or repurchase (or shall be or become required thereunder to
offer to prepay, redeem or repurchase) all or any part of the Subordinated Debt
(provided the payment of any of the Subordinated Notes when the same shall
become due and payable or subject to a mandatory redemption or repurchase by
the terms thereof shall not be a default hereunder unless the payments to the
holders thereof have been blocked pursuant to the subordination provisions
contained in the Subordinated Debt Documents); (ii) the Borrower or any
Subsidiary (A) fails to make any payment when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in respect
of the Subordinated Debt, or any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the $5,000,000, or (B) fails to observe
or perform any other agreement or condition relating to the Subordinated Debt
any such Indebtedness or Guarantee or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event occurs, the effect
of which default or other event is to cause, or to permit the holder or holders
of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or
a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or (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 the Borrower or any
Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the
Borrower or any Subsidiary is an Affected Party (as so defined) and, in either
event, the Swap Termination Value owed by the Borrower or such Subsidiary as a
result thereof is greater than $5,000,000; or


 


(f)                                    Insolvency Proceedings, Etc. 
Any Loan Party or any of its Subsidiaries (other than a DeMinimis
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 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or


 


(g)                                 Inability to Pay Debts; Attachment.  (i) The
Borrower or any Subsidiary (other than a DeMinimis Subsidiary) becomes unable
or admits in writing its inability or fails generally


 


72





















 


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
30 days after its issue or levy; or


 


(h)                                 Judgments.  There (i) there
shall remain in force, undischarged, unsatisfied and unstayed, for more than
thirty days, whether or not consecutive, any final judgment against the
Borrower or any of its Subsidiaries that, with other outstanding final
judgments, undischarged, against the Borrower or any of its Subsidiaries
exceeds in the aggregate $5,000,000; or (ii) is entered against the
Borrower or any Subsidiary any one or more non-monetary final judgments that
have, individually or in the aggregate, a Material Adverse Effect and
enforcement proceedings in connection with any such non-monetary judgment are
commenced by any creditor upon such judgment or order, or there is a period of
thirty consecutive days during which a stay of enforcement of such non-monetary
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 $2,500,000, 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 $2,500,000; or


 


(j)                                     Invalidity of Loan Documents. 
Any of the Loan Documents shall be cancelled, terminated, revoked or
rescinded otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Lenders, or any
action at law, suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of the
Borrower or any of its Subsidiaries party thereto or any of their respective
stockholders, or any court or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of the
Loan Documents is illegal, invalid or unenforceable in accordance with the terms
thereof; or


 


(k)                                  Change of Control. 
There occurs any Change of Control or Designated Event.


 


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


 


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


 


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


 


73





















 


(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.


 


8.03                        Application of Funds. 
After the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and payable and
the L/C Obligations have automatically been required to be Cash Collateralized
as set forth in the proviso to Section 8.02), any amounts received
on account of the Obligations shall be applied by the Administrative Agent in
the following order:


 


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


 


Second, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than
principal, interest, Letter of Credit Fees and amounts under any Swap
Contracts) 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 (including fees and time charges for
attorneys who may be employees of any Lender or 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, L/C Borrowings and other Obligations, ratably among the Lenders
and the L/C Issuer in proportion to the respective amounts described in this
clause Third payable to them;


 


Fourth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings and
amounts owing on the Swap Contracts, ratably among the Lenders and the L/C
Issuer in proportion to the respective amounts described in this clause Fourth
held by them;


 


Fifth, to the Administrative Agent for the
account of the L/C Issuer, to Cash Collateralize that portion of L/C
Obligations comprised of the aggregate undrawn amount of Letters of Credit; and


 


74





















 


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


 


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


 


ARTICLE IX.

ADMINISTRATIVE AGENT


 


9.01                        Appointment and Authority.


 


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 Loan Party shall have rights as a third party beneficiary of any of
such provisions.


 


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


 


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


 


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


 


(b)                                 shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of 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


 


75





















 


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


 


The Administrative
Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary, or as the Administrative Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 10.01 and 8.02) 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 IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.


 


9.04                        Reliance by Administrative Agent.


 


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


 


9.05                        Delegation of Duties. 
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent.  The Administrative


 


76





















 


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.


 


9.06                        Resignation of Administrative
Agent.  The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, 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 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 10.04
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


 


77





















 


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.


 


9.07                        Non-Reliance on Administrative
Agent and Other Lenders.  Each Lender and the L/C Issuer
acknowledges that it has, independently and without reliance upon the
Administrative Agent 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.


 


9.08                        No Other Duties, Etc. 
Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers, Syndication Agent or Documentation Agent listed on the
cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the L/C Issuer hereunder.


 


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


 


(a)                                  to file and prove a claim for the whole
amount of the principal and interest owing and unpaid in respect of the Loans,
L/C Obligations and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders, 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 10.04) 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


 


78





















 


and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.


 


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


 


9.10                        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 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 any Guarantor from its
obligations under the Guaranty pursuant to this Section 9.10.


 


ARTICLE X.

MISCELLANEOUS


 


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


 


(a)                                  waive any condition set forth in Section 4.01(a) without
the written consent of each Lender;


 


(b)                                 extend or increase the Commitment of any
Lender (or reinstate any Commitment terminated pursuant to Section 8.02)
without the written consent of such Lender;


 


(c)                                  postpone any date fixed by this Agreement
or any other Loan Document for any payment (excluding mandatory prepayments
pursuant to Section 2.07(c) or
otherwise) of principal, interest, fees or other amounts due to the Lenders (or
any of them)  hereunder or under any
other Loan Document without the written consent of each Lender directly
affected thereby;


 


(d)                                 reduce the principal of, or the rate of
interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (v) of
the second proviso to this Section 10.01) any fees or other amounts
payable hereunder or under any other Loan Document without the written consent
of each Lender directly affected thereby; provided, however, that
only the consent of the Required Lenders shall be necessary (i) to amend
the definition of “Default Rate” or to waive any obligation of the Borrower to
pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend
any financial covenant hereunder (or any defined term used therein) even if the
effect of


 


79





















 


such amendment would be
to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any
fee payable hereunder;


 


(e)                                  change Section 2.13 or Section 8.03
in a manner that would alter the pro rata sharing of payments required thereby
without the written consent of each Lender;


 


(f)                                    change any provision of this Section or
the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to amend, waive or otherwise
modify any rights hereunder or make any determination or grant any consent
hereunder without the written consent of each Lender; or


 


(g)                                 except as expressly set forth in Section 9.10 of this Agreement, release
all or substantially all of the value of the Guaranty without the written
consent of each Lender;


 


and, provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and
signed by the L/C Issuer in addition to the Lenders required above, affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it; (ii) no
amendment, waiver or consent shall, unless in writing and signed by the Swing
Line Lender in addition to the Lenders required above, affect the rights or
duties of the Swing Line Lender under this Agreement; (iii) no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document;  (iv) Section 10.06(h) may
not be amended, waived or otherwise modified without the consent of each
Granting Lender all or any part of whose Loans are being funded by an SPC at
the time of such amendment, waiver or other modification; and (v) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a writing
executed only by the parties thereto. 
Notwithstanding anything to the contrary herein, no Defaulting Lender
shall have any right to approve or disapprove any amendment, waiver or consent
hereunder, except that the Commitment of such Lender may not be increased or
extended without the consent of such Lender.


 


10.02                 Notices; Effectiveness;
Electronic Communication.


 


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


 


(i)                                     if to the Borrower, the Administrative
Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on Schedule 10.02; and


 


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


 


80





















 


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


 


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


 


Unless the
Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening
of business on the next business day for the recipient, and (ii) notices
or communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that
such notice or communication is available and identifying the website address
therefor.


 


(c)                                  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


 


81





















 


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


 


10.03                 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
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.


 


10.04                 Expenses; Indemnity; Damage
Waiver.


 


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


 


82





















 


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 reasonable out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


 


(b)                                 Indemnification by the Borrower. 
The Borrower shall indemnify the Administrative Agent (and any sub-agent
thereof), each Lender and the L/C Issuer, 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, civil penalties, 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, 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
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any
of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Loan Party, and
regardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part,
out of the comparative, contributory or sole negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final
and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee or (y) result from a claim brought
by the Borrower or any other Loan Party against an Indemnitee for breach in bad
faith of such Indemnitee’s obligations hereunder or under any other Loan
Document, if the Borrower or such Loan Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.


 


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


 


83





















 


capacity as such, or
against any Related Party of any of the foregoing acting for the Administrative
Agent (or any such sub-agent) or L/C Issuer in connection with such
capacity.  The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).


 


(d)                                 Waiver of Consequential Damages, Etc. 
To the fullest extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as
a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Loan or Letter of Credit or the use of the proceeds thereof.  Subject to the limitations contained therein,
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, which demand shall include a reasonably detailed
description of the amounts being demanded.


 


(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 Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.


 


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


 


10.06                 Successors and Assigns.


 


(a)                                  Successors and Assigns Generally. 
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and


 


84





















 


assigns permitted hereby,
except that neither the Borrower nor any Loan Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to
an Eligible Assignee in accordance with the provisions of subsection (b) of
this Section, (ii) by way of participation in accordance with the
provisions of subsection (d) of this Section, (iii) by way of
pledge or assignment of a security interest subject to the restrictions of subsection (f) of
this Section, or (iv) to an SPC in accordance with the provisions of subsection (h) 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 (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 rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (ii) shall not apply to rights in
respect of Swing Line Loans;


 


(iii)                               any assignment of a 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


 


85





















 


(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 amount, if any, required as set
forth in Schedule 10.06, 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 10.04
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 each of the Borrower
and the L/C Issuer at any reasonable time and from time to time upon reasonable
prior notice.  In addition, at any time
that a request for a consent for a material or 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 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.


 


86





















 


Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to Section 10.01
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 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were
a Lender.


 


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


 


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


 


(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)                                 Special Purpose Funding Vehicles. 
Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the
Administrative Agent and the Borrower (an “SPC”) the option to provide
all or any part of any Committed Loan that such Granting Lender would otherwise
be obligated to make pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Committed Loan, and
(ii) if an SPC elects not to exercise such option or otherwise fails to
make all or any part of such Committed Loan, the Granting Lender shall be
obligated to make such Committed Loan pursuant to the terms hereof or, if it
fails to do so, to make such payment to the Administrative Agent as is required
under Section 2.12(b)(ii). 
Each party hereto hereby


 


87





















 


agrees that (i) neither
the grant to any SPC nor the exercise by any SPC of such option shall increase
the costs or expenses or otherwise increase or change the obligations of the
Borrower under this Agreement (including its obligations under Section 3.04),
(ii) no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement for which a Lender would be liable, and (iii) the
Granting Lender shall for all purposes, including the approval of any
amendment, waiver or other modification of any provision of any Loan Document,
remain the lender of record hereunder. 
The making of a Committed Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Committed
Loan were made by such Granting Lender. 
In furtherance of the foregoing, each party hereto hereby agrees (which
agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper or other senior debt of any SPC, it will not institute
against, or join any other Person in instituting against, such SPC any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding
under the laws of the United States or any State thereof.  Notwithstanding anything to the contrary
contained herein, any SPC may (i) with notice to, but without prior
consent of the Borrower and the Administrative Agent and with the payment of a
processing fee in the amount of $2,500, assign all or any portion of its right
to receive payment with respect to any Committed Loan to the Granting Lender
and (ii) disclose on a confidential basis any non-public information
relating to its funding of Committed Loans to any rating agency, commercial
paper dealer or provider of any surety or Guarantee or credit or liquidity
enhancement to such SPC.


 


(i)                                     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 30 days’ notice to the Borrower and the Lenders,
resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower,
resign as Swing Line Lender.  In the
event of any such resignation as L/C Issuer or Swing Line Lender, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer or
Swing Line Lender hereunder; 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 Committed
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 Committed 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, (a) 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 (b) 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.


 


88





















 


10.07                 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 (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 the Borrower 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 the
Borrower or any Subsidiary relating to the Borrower 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 the Borrower or any Subsidiary, provided
that, in the case of information received from the Borrower 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.


 


10.08                 Right of Setoff. 
If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final, in whatever currency) at any time held and other obligations (in
whatever currency) at any time owing by such Lender, the L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower or any other Loan
Party against any and all of the obligations of the Borrower or such Loan Party
now or hereafter existing under this Agreement or any other Loan Document to
such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have


 


89





















 


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.


 


10.09                 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.


 


10.10                 Counterparts; Integration;
Effectiveness.  This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract.  This
Agreement and the other Loan Documents constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof.  Except as
provided in Section 4.01, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken
together, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.


 


10.11                 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.


 


90





















 


10.12                 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.


 


10.13                 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,
or if 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 10.06),
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 10.06(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.


 


10.14                 Governing Law; Jurisdiction; Etc.


 


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


 


(b)                                 SUBMISSION TO JURISDICTION. 
THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS SITTING IN SUFFOLK COUNTY AND OF THE UNITED STATES


 


91





















 


DISTRICT COURT OF THE
FIRST CIRCUIT, 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 MASSACHUSETTS 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
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 ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


(c)                                  WAIVER OF VENUE. 
THE BORROWER 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 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.


 


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


 


92





















 


10.16                 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.


 


93





















 


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


 


	
   

  	
  KEANE,
  INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John J.
  Leahy

  
	
   

  	
  Name: John J.
  Leahy

  
	
   

  	
  Title:   Senior Vice President of Finance and

  Administration and Chief Financial Officer

  



 





















 


	
   

  	
  BANK
  OF AMERICA, N.A., as

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Matthew C. Correia

  
	
   

  	
  Name:

  	
   Matthew C.
  Correia

  
	
   

  	
  Title:

  	
   Assistant
  Vice President

  
					



 





















 


	
   

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

  Issuer and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William S.
  Rowe

  
	
   

  	
  Name:

  	
   William S.
  Rowe

  
	
   

  	
  Title:

  	
  Principal

  
				



 





















 


	
   

  	
  KEYBANK
  NATIONAL ASSOCIATION, as a

  Lender and Syndication Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Jeff Kalinowksi

  
	
   

  	
  Name:

  	
   Jeff
  Kalinowksi

  
	
   

  	
  Title:

  	
   Sr. Vice President

  
					



 





















 


	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION, as
  a Lender and Documentation

  Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jiong Liu

  
	
   

  	
  Name:

  	
   Jiong Liu

  
	
   

  	
  Title:

  	
   Vice President

  
					



 





















 


	
   

  	
  SOVEREIGN
  BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Greg
  Batsevitsky

  
	
   

  	
  Name:

  	
   Greg
  Batsevitsky

  
	
   

  	
  Title:

  	
   Vice President

  
					



 





















 


	
   

  	
  HSBC
  BANK USA, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Manuel Burgueno

  
	
   

  	
  Name:

  	
   Manuel
  Burgueno

  
	
   

  	
  Title:

  	
   Vice President

  
					



 





















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Caroline
  Gates

  
	
   

  	
  Name:

  	
   Caroline
  Gates

  
	
   

  	
  Title:

  	
   Vice President

  
					



 





















 


	
   

  	
  CITICORP
  USA, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Ross Levitsky

  
	
   

  	
  Name:

  	
   Ross
  Levitsky

  
	
   

  	
  Title:

  	
   Director/VP

  
					



 





















 


	
   

  	
  MORGAN
  STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  Twenge

  
	
   

  	
  Name:

  	
   Daniel
  Twenge

  
	
   

  	
  Title:

  	
   Vice President

  
					



 





















 


SCHEDULE 2.01


 


COMMITMENTS

AND APPLICABLE PERCENTAGES


 


	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Applicable

  Percentage

  	
  %

  
	
  Bank of America,
  N.A.

  	
   

  	
  $

  	
  37,000,000

  	
   

  	
  18.500000000

  
	
  KeyBank National
  Association

  	
   

  	
  $

  	
  34,000,000

  	
   

  	
  17.000000000

  	
  %

  
	
  Wachovia Bank,
  National Association

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  15.000000000

  	
  %

  
	
  Sovereign Bank

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  15.000000000

  	
  %

  
	
  HSBC Bank USA,
  National Association

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  10.000000000

  	
  %

  
	
  Wells Fargo
  Bank, National Association

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  10.000000000

  	
  %

  
	
  Citicorp USA, Inc.

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  10.000000000

  	
  %

  
	
  Morgan Stanley
  Bank

  	
   

  	
  $

  	
  9,000,000

  	
   

  	
  4.500000000

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  $

  	
  200,000,000

  	
   

  	
  100.000000000

  	
  %

  



 





















 


SCHEDULE 10.02


 


ADMINISTRATIVE AGENT’S OFFICE;

CERTAIN ADDRESSES FOR NOTICES


 


KEANE, INC.:


100 City Square


Boston,
Massachusetts  02120


Attention:  Mary
Converse, Vice President


Telephone: 
(617)241-9200


Telecopier:  (617)241-9507


Electronic Mail:
mary_converse@keane.com


Website Address:                                               www.keane.com


 


ADMINISTRATIVE AGENT:


 


Administrative
Agent’s Office


(for
payments and Requests for Credit Extensions):


Bank of America, N.A.


Street Address:  One Independence Center, 101 N. Tryon Street


Mail Code:  NC1-001-15-04


City, State ZIP
Code:  Charlotte, NC  28255-0001


Attention: 
Edwina Champion, Credit Service Representative


Telephone:  704-388-9114


Telecopier:  704-409-0008


Electronic Mail: 
edwina.champion@bankofamerica.com


Account No.:136-621-225-0600


Ref:  Keane, Inc.


ABA# 026-009-593


 


Other
Notices as Administrative Agent:


Bank of America, N.A.


Agency Management


Street Address:  100 Federal Street


Mail Code:  MA5-100-11-02


City, State ZIP
Code:  Boston, MA  02110


Attention: 
Kalens Herold


Telephone:  617-434-5249


Telecopier:  617-434-0474


Electronic Mail: 
kalens.herold@bankofamerica.com


 





















 


L/C
ISSUER:


 


Bank of America, N.A.


Trade Operations


Street Address:  One Fleet Way


Mail Code:  PA6-580-02-30


City, State ZIP
Code:  Scranton, PA  18507


Attention: 
Alfonso Malave Jr.


Telephone:  570-330-4212


Telecopier:  570-330-4186


Electronic Mail: 
alfonso.malave@bankofamerica.com


 


SWING LINE LENDER:


 


Bank of America, N.A.


Street Address:  One Independence Center, 101 N. Tryon Street


Mail Code:  NC1-001-15-04


City, State ZIP
Code:  Charlotte, NC  28255-0001


Attention: 
Edwina Champion


Telephone:  704-388-9114


Telecopier:  704-409-0008


Electronic Mail: 
edwina.champion@bankofamerica.com


Account No.:  136-621-225-0600


Ref:  Keane, Inc.


ABA# 026-009-593


 





















 


SCHEDULE 10.06


 


PROCESSING AND RECORDATION FEES


 


The Administrative
Agent will charge a processing and recordation fee (an “Assignment Fee”)
in the amount of $2,500 for each assignment; provided, however,
that in the event of two or more concurrent assignments to members of the same
Assignee Group (which may be effected by a suballocation of an assigned amount
among members of such Assignee Group) or two or more concurrent assignments by
members of the same Assignee Group to a single Eligible Assignee (or to an
Eligible Assignee and members of its Assignee Group), the Assignment Fee will
be $2,500 plus the amount set forth below:


 


	
  Transaction

  	
   

  	
  Assignment Fee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  First four concurrent assignments or suballocations
  to members of an Assignee Group (or from members of an Assignee Group, as
  applicable)

  	
   

  	
  -0-

  	
   

  
	
  Each additional concurrent assignment or
  suballocation to a member of such Assignee Group (or from a member of such
  Assignee Group, as applicable)

  	
   

  	
  $

  	
  500