Exhibit 10.7


 


 


Execution Copy




 





 


 


CREDIT AGREEMENT


 


dated as of January 30, 2004


 


among


 


EPIQ SYSTEMS, INC.,

BANKRUPTCY SERVICES LLC

and

POORMAN-DOUGLAS CORPORATION,

as the Borrowers


 


THE VARIOUS FINANCIAL INSTITUTIONS PARTY
HERETO,

as Lenders,


 


LASALLE BANK NATIONAL ASSOCIATION,

as Administrative Agent,


 


and


 


KEYBANK NATIONAL ASSOCIATION,

as Syndication Agent




 


 





 


LASALLE BANK NATIONAL ASSOCIATION,

as Arranger


 

















 


CREDIT AGREEMENT


 


 


THIS CREDIT
AGREEMENT dated as of January 30, 2004 (this “Agreement”) is entered
into among EPIQ SYSTEMS, INC., a Missouri corporation  (the “Company”), BANKRUPTCY SERVICES LLC, a New York
limited liability company (“Bankruptcy Services”), POORMAN-DOUGLAS
CORPORATION, a Rhode Island corporation (“Poorman”), (Bankruptcy
Services, Poorman and each other Subsidiary of the Company that becomes a party
hereto as a Borrower pursuant to a Joinder Agreement are collectively referred
to herein as the “Borrower Subsidiaries”), the financial institutions
that are or may from time to time become parties hereto (together with their
respective successors and assigns, the “Lenders”), KEYBANK NATIONAL
ASSOCIATION, as syndication agent, and LASALLE BANK NATIONAL ASSOCIATION (in
its individual capacity, “LaSalle”), as administrative agent for the
Lenders.


 


The Lenders
have agreed to make available to the Company term loans and a revolving credit
facility (which includes letters of credit) upon the terms and conditions set
forth herein.


 


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


 


SECTION 1                                   DEFINITIONS.


 


1.1                                 Definitions.  When used herein the following terms shall
have the following meanings:


 


Account Debtor is defined in the Guaranty and
Collateral Agreement.


 


Account or Accounts is defined in the UCC.


 


Acquired Entity – see the definition of “Permitted
Acquisition”.


 


Acquisition means any transaction or series of
related transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a Person,
or of all or substantially all of any business or division of a Person, (b) the
acquisition of in excess of 50% of the Capital Securities of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is already a Subsidiary).


 


Administrative Agent means LaSalle in its
capacity as administrative agent for the Lenders hereunder and any successor
thereto in such capacity.


 


Affected Loan - see Section 8.3.


 


Affiliate of any Person means (a) any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person, (b) any officer or director of such Person and
(c) with respect to any Lender, any entity administered or managed by such
Lender or an Affiliate or investment advisor thereof and which is engaged in
making, purchasing, holding or otherwise investing in commercial loans.  A Person shall be deemed to be “controlled
by” any other Person if such Person possesses, directly or indirectly, power to
vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managers or power to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.  Unless expressly
stated otherwise herein, neither the Administrative Agent nor any Lender shall
be deemed an Affiliate of any Loan Party.


 


Agreement - see the Preamble.


 


1

















 


Applicable Margin means, for any day, the rate
per annum set forth below opposite the level (the “Level”) then in
effect, it being understood that the Applicable Margin for (i) LIBOR Loans
shall be the percentage set forth under the column “LIBOR Margin”, (ii) Base Rate Loans shall be the
percentage set forth under the column “Base
Rate Margin”, (iii) the Non-Use Fee Rate shall be the percentage set
forth under the column “Non-Use Fee Rate”
and (iv) the L/C Fee shall be the percentage set forth under the column “L/C Fee Rate”:


 


	
  Level

  	
   

  	
  Total Debt
  to EBITDA Ratio

  	
   

  	
  LIBOR 

  Margin

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Non-Use

  Fee Rate

  	
   

  	
  L/C Fee 

  Rate

  	
   

  
	
  I

  	
   

  	
  Greater than
  or equal to 1.50:1

  	
   

  	
  3.50

  	
  %

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  	
  3.50

  	
  %

  
	
  II

  	
   

  	
  Greater than
  or equal to 1.00:1 but less than 1.50:1

  	
   

  	
  3.25

  	
  %

  	
  1.75

  	
  %

  	
  0.50

  	
  %

  	
  3.25

  	
  %

  
	
  III

  	
   

  	
  Greater than
  or equal to 0.50:1 but less than 1.00:1

  	
   

  	
  3.00

  	
  %

  	
  1.50

  	
  %

  	
  0.50

  	
  %

  	
  3.00

  	
  %

  
	
  IV

  	
   

  	
  Less than
  0.50:1

  	
   

  	
  2.75

  	
  %

  	
  1.25

  	
  %

  	
  0.50

  	
  %

  	
  2.75

  	
  %

  



 


The LIBOR
Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee Rate shall
be adjusted, to the extent applicable, on the fifth (5th) Business Day after
the Company provides or is required to provide the annual and quarterly
financial statements and other information pursuant Section 10.1.1 or 10.1.2,
as applicable, and the related Compliance Certificate, pursuant to Section
10.1.3.  Notwithstanding anything
contained in this paragraph to the contrary, (a) if the Company fails to
deliver the such financial statements and Compliance Certificate in accordance
with the provisions of Section 10.1.1, 10.1.2 and 10.1.3,
the LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the L/C Fee
Rate shall be based upon Level I above beginning on the date such financial
statements and Compliance Certificate were required to be delivered until the
fifth (5th) Business Day after such financial statements and Compliance
Certificate are actually delivered, whereupon the Applicable Margin shall be
determined by the then current Level; (b) no reduction to any Applicable Margin
shall become effective at any time when an Event of Default or Unmatured Event
of Default has occurred and is continuing; and (c) the initial Applicable
Margin on the Closing Date shall be based on Level I until the date on which
the financial statements and Compliance Certificate are required to be
delivered for the Fiscal Quarter ending June 30, 2004.


 


Asset Disposition means the sale, lease,
assignment or other transfer for value (each, a “Disposition”) by any
Loan Party to any Person (other than a Loan Party) of any asset or right of
such Loan Party (including the loss, destruction or damage of any thereof or
any condemnation, confiscation, requisition, seizure or taking thereof) other
than (a) the Disposition of any asset which is to be replaced, and is in fact
replaced, within 180 days with another asset performing the same or a similar
function, (b) the sale or lease of inventory in the ordinary course of business
and (c) other Dispositions in any Fiscal Year the Net Cash Proceeds of which do
not in the aggregate exceed $325,000 in any Fiscal Year.


 


Assignee - see Section 16.6.1.


 


Assignment Agreement - see Section 16.6.1.


 


Attorney Costs means, with respect to any
Person, all reasonable fees and charges of any counsel to such Person, the
reasonable allocable cost of internal legal services of such Person to the
extent not duplicative of work performed by external counsel, all reasonable
disbursements of such internal counsel and all court costs and similar legal
expenses.


 


Bank Product Agreements means those certain
cash management service agreements entered into from time to time between any
Loan Party and a Lender or its Affiliates in connection with any of the Bank
Products.


 


2

















 


Bank Product Obligations means all
obligations, liabilities, contingent reimbursement obligations, fees, and
expenses owing by the Loan Parties to any Lender or its Affiliates pursuant to
or evidenced by the Bank Product Agreements and irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all such amounts
that a Loan Party is obligated to reimburse to the Administrative Agent or any
Lender as a result of the Administrative Agent or such Lender purchasing
participations or executing indemnities or reimbursement obligations with
respect to the Bank Products provided to the Loan Parties pursuant to the Bank
Product Agreements.


 


Bank Products means any service or facility
extended to any Loan Party by any Lender or the Administrative Agent or its
Affiliates including:  (a) credit cards,
(b) credit card processing services, (c) debit cards, (d) purchase cards, (e)
ACH Transactions, (f) cash management, including controlled disbursement,
accounts or services, or (g) Hedging Agreements.


 


Bankruptcy Code means Title 11 of the
United States Code (11 U.S.C. § 101 et. seq.) or any replacement or
supplemental federal statute dealing with the bankruptcy of debtors.


 


Base Rate means at any time the greater of
(a) the Federal Funds Rate plus
0.5% and (b) the Prime Rate.


 


Base Rate Loan means any Loan which bears
interest at or by reference to the Base Rate.


 


Base Rate Margin - see the definition of
Applicable Margin.


 


Borrower Subsidiary – see the Preamble.


 


Borrowers means, collectively, the Company,
each Borrower Subsidiary and each other Person that from time to time becomes a
Borrower under this Agreement pursuant to a Joinder Agreement, and “Borrower” means any of the Borrowers.


 


BSA - see Section 10.4.


 


Business Day means any day on which LaSalle is
open for commercial banking business in Chicago, Illinois and, in the case of a
Business Day which relates to a LIBOR Loan, on which dealings are carried on in
the London interbank eurodollar market.


 


Capital Expenditures means all expenditures
which, in accordance with GAAP, would be required to be capitalized and shown
on the consolidated balance sheet of the Company, including expenditures in
respect of Capital Leases and expenditures with respect to internally developed
capitalized software, but excluding expenditures made in connection with the
replacement, substitution or restoration of assets to the extent financed (i)
from insurance proceeds (or other similar recoveries) paid on account of the
loss of or damage to the assets being replaced or restored or (ii) with awards
of compensation arising from the taking by eminent domain or condemnation of
the assets being replaced.


 


Capital Lease means, with respect to any
Person, any lease of (or other agreement conveying the right to use) any real
or personal property by such Person that, in conformity with GAAP, is accounted
for as a capital lease on the balance sheet of such Person.


 


Capital Securities means, with respect to any
Person, all shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person’s capital, whether now
outstanding or issued or acquired after the Closing Date, including common
shares, preferred shares, membership interests in a limited liability company,
limited or general partnership interests in a partnership,


 


3

















 


interests in a trust, interests
in other unincorporated organizations or any other equivalent of such ownership
interest.


 


Cash and Cash Equivalents means cash and Cash
Equivalent Investments held in accounts with the Administrative Agent pursuant
to cash collateral or other arrangements satisfactory to the Administrative
Agent.


 


Cash Collateralize means to deliver cash
collateral to the Administrative Agent, to be held as cash collateral for
outstanding Letters of Credit, pursuant to documentation in form and substance,
and in an amount, reasonably satisfactory to the Administrative Agent.  Derivatives of such term have corresponding
meanings.


 


Cash Equivalent Investment means, at any time,
(a) any evidence of Debt, maturing not more than one year after such time,
issued or guaranteed by the United States Government or any agency thereof, (b)
commercial paper, maturing not more than one year from the date of issue, or
corporate demand notes, in each case (unless issued by a Lender or its holding
company) rated at least A-2 by Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc. or P-2 by Moody’s Investors
Service, Inc., (c) any certificate of deposit, time deposit or banker’s
acceptance, maturing not more than one year after such time, or any overnight
Federal funds transaction that is issued or sold by any Lender or its holding
company (or by a commercial banking institution that is a member of the Federal
Reserve System and has a combined capital and surplus and undivided profits of
not less than $250,000,000), (d) any repurchase agreement entered into with any
Lender (or commercial banking institution of the nature referred to in clause
(c)) which (i) is secured by a fully perfected security interest in any
obligation of the type described in any of clauses (a) through (c)
above and (ii) has a market value at the time such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such Lender
(or other commercial banking institution) thereunder and (e) money market
accounts or mutual funds which invest exclusively in assets satisfying the
foregoing requirements, and (f) other short term liquid investments approved in
writing by the Administrative Agent.


 


Change of Control means the occurrence of any
of the following events: (a) if any person (as such term is used in Section
13(d) and Section 14(d)(2) of the Exchange Act as in effect on the Closing
Date) or related persons constituting a group (as such term is used in Rule
13d-5 under the Exchange Act) (other than Tom Olofson and Christopher Olofson)
become the “beneficial owners” (as such term is used in Rule 13d-3 under the
Exchange Act as in effect on the Closing Date), directly or indirectly, of more
than 25% of the total voting power of all classes then outstanding of the
Company’s Capital Securities, (b) the Company shall cease to, directly or
indirectly, own and control 100% of each class of the outstanding Capital
Securities of each Subsidiary or (c) either of Tom Olofson or Christopher
Olofson ceases to be actively involved in the day-to-day management of the
Company for any reason and a successor reasonably satisfactory to the Required
Lenders does not assume such Person’s responsibilities and position within 180
days of such cessation.


 


Closing Date - see Section 12.1.


 


Code means the Internal Revenue Code of 1986.


 


Collateral means all assets of the Company and
its Subsidiaries in which a Lien has been granted to the Administrative Agent
for the benefit of the Lenders pursuant to the Collateral Documents to secure
the payment and performance of the Obligations.


 


Collateral Access Agreement means an agreement
in form and substance reasonably satisfactory to the Administrative Agent
pursuant to which a mortgagee or lessor of real property on which collateral is
stored or otherwise located, or a warehouseman, processor or other bailee of
Inventory or other property owned by any Loan Party, acknowledges the Liens of
the Administrative Agent and waives or subordinates (on terms satisfactory to
the Administrative Agent) any Liens held by such Person on such property, and,
in the case of any such agreement with a mortgagee or lessor, permits the
Administrative Agent reasonable access to and use


 


4

















 


of such real property following
the occurrence and during the continuance of an Event of Default to assemble,
complete and sell any collateral stored or otherwise located thereon.


 


Collateral Documents means, collectively, the
Guaranty and Collateral Agreement, each Mortgage,  each Collateral Access Agreement, each Pledge Agreement, each
Perfection Certificate, each control agreement and any other agreement or
instrument pursuant to which the Company, any Subsidiary or any other Person
grants or purports to grant collateral to the Administrative Agent for the
benefit of the Lenders to secure the performance of any Obligations or
otherwise relates to any Collateral.


 


Commitment means, as to any Lender, such
Lender’s commitment to make Loans, and to issue or participate in Letters of
Credit, under this Agreement.  The
initial amount of each Lender’s commitment to make Loans is set forth on Annex
A.


 


Company - see the Preamble.


 


Company Property means all assets, property
and property rights, of any kind or nature, tangible or intangible, now or
hereafter existing, in which any Borrower or any Loan Party owns, asserts or
maintains an interest.


 


Compliance Certificate means a Compliance
Certificate in substantially the form of Exhibit B.


 


Computation Period means each period of four
consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter.


 


Consolidated Net Income means, with respect to
any Person for any period, the net income (or loss) of such Person and its
Subsidiaries for such period, excluding any gains (or losses) from Asset
Dispositions, any extraordinary gains (or losses) and any gains (or losses)
from discontinued operations as determined in accordance with GAAP.


 


Contingent Liability means, with respect to
any Person, each obligation and liability of such Person and all such
obligations and liabilities of such Person incurred pursuant to any agreement,
undertaking or arrangement by which such Person:  (a) guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
dividend, obligation or other liability of any other Person in any manner
(other than by endorsement of instruments in the course of collection), including
any indebtedness, dividend or other obligation which may be issued or incurred
at some future time; (b) guarantees the payment of dividends or other
distributions upon the Capital Securities of any other Person; (c) undertakes
or agrees (whether contingently or otherwise): 
(i) to purchase, repurchase, or otherwise acquire any indebtedness,
obligation or liability of any other Person or any property or assets
constituting security therefor, (ii) to advance or provide funds for the
payment or discharge of any indebtedness, obligation or liability of any other
Person (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain solvency, assets, level of income,
working capital or other financial condition of any other Person, or (iii) to
make payment to any other Person other than for value received; (d) agrees to
lease property or to purchase securities, property or services from such other
Person with the purpose or intent of assuring the owner of such indebtedness or
obligation of the ability of such other Person to make payment of the
indebtedness or obligation; (e) undertakes to induce the issuance of, or
in connection with the issuance of, any letter of credit for the benefit of
such other Person; or (f) undertakes or agrees otherwise to assure a creditor
against loss.  The amount of any
Contingent Liability shall (subject to any limitation set forth herein) be
deemed to be the outstanding principal amount (or maximum permitted principal
amount, if larger) of the indebtedness, obligation or other liability
guaranteed or supported thereby, unless such Contingent Liability is explicitly
limited by contract to a stated amount or recourse against a specific asset, in
which case, the amount of such Contingent Liability shall be deemed to be such
stated amount or the fair market value of such asset, as applicable.


 


5

















 


Controlled Group means all members of a
controlled group of corporations, all members of a controlled group of trades
or businesses (whether or not incorporated) under common control and all
members of an affiliated service group which, together with the Company or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code or Section 4001 of ERISA.


 


Debt of any Person means, without duplication,
(a) all borrowed money of such Person, whether or not evidenced by bonds,
debentures, notes or similar instruments, (b) all obligations of such Person as
lessee under Capital Leases which have been or should be recorded as
liabilities on a balance sheet of such Person in accordance with GAAP, (c) all
obligations of such Person to pay the deferred purchase price of property or
services (excluding trade accounts payable in the ordinary course of business
and accrued expenses and the deferred purchase price of Acquisitions), (d) all
indebtedness secured by a Lien on the property of such Person, whether or not
such indebtedness shall have been assumed by such Person; provided that
if such Person has not assumed or otherwise become liable for such
indebtedness, such indebtedness shall be measured at the fair market value of
such property securing such indebtedness at the time of determination, (e) all
obligations, contingent or otherwise, with respect to the face amount of all
letters of credit (whether or not drawn), bankers’ acceptances and similar
obligations issued for the account of such Person (including the Letters of
Credit), (f) all Hedging Obligations of such Person, (g) all Contingent
Liabilities of such Person where the underlying obligations would constitute
Debt under this definition and (h) all Debt of any partnership of which such
Person is a general partner.


 


Debt to be Repaid means Debt listed on Schedule
12.1.


 


Designated Proceeds - see Section 6.2.2(a).


 


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


 


Earnout Obligations means all obligations
incurred in connection with any Permitted Acquisition under non-compete
agreements, consulting agreements, purchase agreements, earn-out agreements and
similar deferred purchase arrangements.


 


EBITDA means, for any Person, for any period,
Consolidated Net Income for such Person for such period plus, to the
extent deducted in determining such Consolidated Net Income, (i) Interest
Expense, income tax expense, depreciation, amortization and other non-cash
charges, (ii) unamortized costs, fees and expenses incurred in connection
with the transactions contemplated by this Agreement, the Related Transactions
and any Permitted Acquisition and (iii) expenses and charges which will be
indemnified or reimbursed to the extent such amounts are covered by funds in a
valid escrow account or similar arrangement, in each case, for such period
without duplication and all as determined on a Pro Forma Basis in accordance
with GAAP; provided, however, that for purposes of calculating
EBITDA for the Company and its Subsidiaries, (a) EBITDA for the three (3)
month period ended March 31, 2003, shall be $8,238,000, (b) EBITDA for the
three (3) month period ended June 30, 2003, shall be $11,848,000 and
(c) EBITDA for the three (3) month period ended September 30, 2003,
shall be $14,907,000; provided, further, that for purposes of
making the calculations required by Section 12.1, EBITDA for the Company
and its Subsidiaries for the three (3) month period ended December 31,
2003, shall be $12,800,000.


 


Environmental Claims means all claims, however
asserted, by any governmental, regulatory or judicial authority or other Person
alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.


 


Environmental Laws means all present or future
federal, state or local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative or judicial orders,
consent agreements, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authority, in each case
relating to public health and safety, or pollution or protection of the
environment or workplace, including any of the foregoing relating to the
presence, use, production, generation,


 


6

















 


handling, transport, treatment,
storage, disposal, distribution, discharge, emission, release, threatened
release, control or cleanup of any Hazardous Substance.


 


EPIQ Acquisition means EPIQ Systems
Acquisition, Inc., a New York corporation.


 


ERISA means the Employee Retirement Income
Security Act of 1974.


 


Event of Default means any of the events
described in Section 13.1.


 


Excess Cash Flow means, for any period, the
remainder of (a) Unadjusted EBITDA for such period, minus (b) the sum,
without duplication, of (i) scheduled repayments of principal of Term Loans
made during such period, plus (ii) voluntary prepayments of the Term A
Loans pursuant to Section 6.2.1 during such period, plus (iii)
cash payments made in such period with respect to Capital Expenditures, plus
(iv) all income taxes paid in cash by the Loan Parties during such period, plus
(v) cash Interest Expense of the Loan Parties during such period.


 


Exchange Act means the Securities Exchange Act
of 1934, as amended.


 


Excluded Taxes means taxes based upon, or
measured by, a Lender’s or the Administrative Agent’s (or a branch of a
Lender’s or the Administrative Agent’s) overall net income, overall net
receipts, or overall net profits (including franchise taxes imposed in lieu of
such taxes), but only to the extent such taxes are imposed by the United States
or a taxing authority (a) in a jurisdiction in which such Lender or the
Administrative Agent is organized, (b) in a jurisdiction which such
Lender’s or the Administrative Agent’s principal office is located, or (c) in a
jurisdiction in which such Lender’s or the Administrative Agent’s lending
office (or branch) in respect of which payments under this Agreement are made
is located.


 


Federal Funds Rate means, for any day, a
fluctuating interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent.  The
Administrative Agent’s determination of such rate shall be binding and
conclusive absent manifest error.


 


Finally Paid or Final Payment, when
used in connection with any Debt, means the full payment in cash of all of the
obligations with respect to such Debt (other than contingent indemnity
obligations not expected to be incurred) and the irrevocable termination of all
commitments related thereto.


 


Fiscal Quarter means a fiscal quarter of a
Fiscal Year.


 


Fiscal Year means the fiscal year of the
Company and its Subsidiaries, which period shall be the 12-month period ending
on December 31 of each year.  References
to a Fiscal Year with a number corresponding to any calendar year (e.g., “Fiscal
Year 2003”) refer to the Fiscal Year ending on December 31  of such calendar year.


 


FRB means the Board of Governors of the
Federal Reserve System or any successor thereto.


 


GAAP means generally accepted accounting
principles set forth from time to time in the opinions and pronouncements of
the Accounting Research Board, the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies within the U.S.
accounting profession with similar or delegated functions and recognized by the
Financial Accounting Standards Board as having authority to issue such
opinions,


 


7

















 


statements or pronouncements)
and the Securities and Exchange Commission, which are applicable to the
circumstances as of the date of determination.


 


Group - see Section 2.2.1.


 


Guaranty and Collateral Agreement means the
Guaranty and Collateral Agreement dated as of the date hereof executed and
delivered by the Loan Parties, together with any joinders thereto and any other
guaranty and collateral agreement executed by a Loan Party, in each case in
form and substance satisfactory to the Administrative Agent and as amended,
modified or supplemented from time to time.


 


Hazardous Substances means (a) any
petroleum or petroleum products, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam insulation, dielectric
fluid containing levels of polychlorinated biphenyls, radon gas and mold;
(b) any chemicals, materials, pollutant or substances defined as or
included in the definition of “hazardous substances”, “hazardous waste”,
“hazardous materials”, “extremely hazardous substances”, “restricted hazardous
waste”, “toxic substances”, “toxic pollutants”, “contaminants”, “pollutants” or
words of similar import, under any applicable Environmental Law; and
(c) any other chemical, material or substance, the exposure to, or release
of which is prohibited, limited or regulated by, or for which any duty or
standard of care is imposed pursuant to, any Environmental Law.


 


Hedging Agreement means any interest rate,
currency or commodity swap agreement, cap agreement or collar agreement, and
any other agreement or arrangement designed to protect a Person against
fluctuations in interest rates, currency exchange rates or commodity prices.


 


Hedging Obligation means, with respect to any
Person, any liability of such Person under any Hedging Agreement.  The amount of any Person’s obligation in
respect of any Hedging Obligation shall be deemed to be the incremental
obligation that would be reflected in the financial statements of such Person
in accordance with GAAP.


 


Indemnified Liabilities - see Section 16.17.


 


Interest Charge Coverage Ratio means, for any
Person, for any Computation Period, the ratio of (a) the total for such period
of EBITDA for such Person minus the sum of income taxes paid in cash by
the Loan Parties and all unfinanced Capital Expenditures (other than Capital
Expenditures which are (A) Permitted Acquisitions or (B) expenditures
to the extent that such expenditures are made (i) as a tenant in leasehold
improvements to the extent reimbursable by the landlord or (ii) with the
proceeds of Asset Dispositions) to (b) net cash Interest Expense for
such period minus, to the extent included in net cash Interest Expense
for such period, fees and expenses paid in connection with this Agreement
(other than the fee referenced in Section 5.1).


 


Interest Expense means for any Person for any
period the consolidated interest expense of such Person and its Subsidiaries
for such period (including all imputed interest on Capital Leases).


 


Interest Period means, as to any LIBOR Loan,
the period commencing on the date such Loan is borrowed or continued as, or converted
into, a LIBOR Loan and ending on the date one, two, three or six months
thereafter as selected by the Company pursuant to Section 2.2.2 or 2.2.3,
as the case may be; provided that:


 


(a)                                  if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the following Business Day unless the
result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the preceding
Business Day;


 


8

















 


(b)                                 any
Interest Period that begins 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;


 


(c)                                  the
Company may not select any Interest Period for a Revolving Loan which would
extend beyond the scheduled Termination Date; and


 


(d)                                 the
Company may not select any Interest Period for a Term Loan if, after giving
effect to such selection, the aggregate principal amount of all Term Loans
having Interest Periods ending after any date on which an installment of the
Term Loans is scheduled to be repaid would exceed the aggregate principal
amount of the Term Loans scheduled to be outstanding after giving effect to
such repayment.


 


Inventory is defined in the Guaranty and
Collateral Agreement.


 


Investment means, with respect to any Person,
any investment in another Person, whether by acquisition of any debt or Capital
Security, by making any loan or advance, by becoming obligated with respect to
a Contingent Liability in respect of obligations of such other Person (other
than travel and similar advances to employees in the ordinary course of
business) or by making an Acquisition.


 


Issuing Lender means LaSalle, in its capacity
as the issuer of Letters of Credit hereunder, or any Affiliate of LaSalle that
may from time to time issue Letters of Credit, and their successors and assigns
in such capacity.


 


Joinder Agreement means a Joinder Agreement in
the form annexed as Exhibit C, or in such other form that may be
satisfactory in form and substance to the Administrative Agent.


 


Knowledge means, when referring to the
“Knowledge” of any Person or any similar phrase or qualification based on
knowledge or awareness with respect to such Person, (i) the actual knowledge of
such Person, and (ii) the knowledge that any such Person, as a prudent business
person, would have obtained in the conduct of his or her business.


 


LaSalle - see the Preamble.


 


L/C Application means, with respect to any
request for the issuance of a Letter of Credit, a letter of credit application
in the form being used by the Issuing Lender at the time of such request for
the type of letter of credit requested.


 


L/C Fee Rate - see the definition of
Applicable Margin.


 


Lender - see the Preamble.  References to the “Lenders” shall include
the Issuing Lender; for purposes of clarification only, to the extent that
LaSalle (or any successor Issuing Lender) may have any rights or obligations in
addition to those of the other Lenders due to its status as Issuing Lender, its
status as such will be specifically referenced.  In addition to the foregoing, for the purpose of identifying the
Persons entitled to share in the Collateral and the proceeds thereof under, and
in accordance with the provisions of, this Agreement and the Collateral
Documents, the term “Lender” shall include Affiliates of a Lender providing a
Bank Product.


 


Lender Party - see Section 16.17.


 


Letter of Credit - see Section 2.1.3.


 


9

















 


LIBOR Loan means any Loan which bears interest
at a rate determined by reference to the LIBOR Rate.


 


LIBOR Margin - see the definition of
Applicable Margin.


 


LIBOR Office means with respect to any Lender
the office or offices of such Lender which shall be making or maintaining the
LIBOR Loans of such Lender hereunder.  A
LIBOR Office of any Lender may be, at the option of such Lender, either a
domestic or foreign office.


 


LIBOR Rate means a rate of interest equal to
(a) the per annum rate of interest at which United States dollar deposits in an
amount comparable to the amount of the relevant LIBOR Loan and for a period
equal to the relevant Interest Period are offered in the London Interbank
Eurodollar market at 11:00 A.M. (London time) two (2) Business Days prior to
the commencement of such Interest Period (or three (3) Business Days prior to
the commencement of such Interest Period if banks in London, England were not
open and dealing in offshore United States dollars on such second preceding
Business Day), as displayed in the Bloomberg Financial Markets system (or
other authoritative source selected by the Administrative Agent in its sole
discretion) or, if the Bloomberg Financial Markets system or
another authoritative source is not available, as the LIBOR Rate is otherwise
determined by the Administrative Agent in its sole and absolute discretion,
divided by (b) a number determined by subtracting from 1.00 the then stated
maximum reserve percentage for determining reserves to be maintained by member
banks of the Federal Reserve System for Eurocurrency funding or liabilities as
defined in Regulation D (or any successor category of liabilities under
Regulation D), such rate to remain fixed for such Interest Period.  The Administrative Agent’s determination of
the LIBOR Rate shall be conclusive, absent manifest error.


 


Lien means, with respect to any Person, any
interest granted by such Person in any real or personal property, asset or
other right owned or being purchased or acquired by such Person (including an
interest in respect of a Capital Lease) which secures payment or performance of
any obligation and shall include any mortgage, lien, encumbrance, title retention
lien, charge or other security interest of any kind, whether arising by
contract, as a matter of law, by judicial process or otherwise.


 


Loan Documents means this Agreement, the
Notes, the Letters of Credit, the Master Letter of Credit Agreement, the L/C
Applications, the Collateral Documents and all documents, instruments and
agreements delivered by a Loan Party in connection with the foregoing.


 


Loan Party means the Company, each Borrower
Subsidiary and each other Subsidiary of the Company.


 


Loan or Loans means, as the context may
require, Revolving Loans and/or Term Loans.


 


Major Contract means any contract of any Loan
Party which accounts for 20% or more of the annual revenue of the Loan Parties
taken as a whole.


 


Mandatory Prepayment Event - see Section
6.2.2(a).


 


Margin Stock means any “margin stock” as
defined in Regulation U.


 


Master Letter of Credit Agreement means, at
any time, with respect to the issuance of Letters of Credit, a master letter of
credit agreement or reimbursement agreement in the form annexed as Exhibit G
or in the form, if any, being used by the Issuing Lender at such time.


 


Material Adverse Effect means (a) a material
adverse change in, or a material adverse effect upon, the financial condition,
operations, assets, business, properties or prospects of the Loan Parties taken
as a whole, (b) a material impairment of the ability of any Loan Party to
perform any of the Obligations under the Loan


 


10

















 


Documents or (c) a material
adverse effect upon any substantial portion of the collateral under the
Collateral Documents or upon the legality, validity, binding effect or
enforceability against any Loan Party of the Loan Documents.


 


Merger Agreement means that certain Agreement
and Plan of Merger dated as of January 30, 2004 by and among P-D, Company
and PD Merger Corp. and the Shareholders’ Representative identified therein.


 


Merger Side Letter means that certain
Agreement Related to Merger Agreement dated as of January 30, 2004 by and among
P-D, the Company and the shareholders of P-D named therein.


 


Mortgage means a mortgage, deed of trust or
similar instrument granting the Administrative Agent a Lien on real property
owned by any Loan Party.


 


Multiemployer Pension Plan means a multiemployer
plan, as defined in Section 4001(a)(3) of ERISA, to which the Company or any
other member of the Controlled Group may have any liability.


 


Net Cash Proceeds means:  (a) with respect to any Asset Disposition,
the aggregate cash proceeds (including cash proceeds received pursuant to
policies of insurance or by way of deferred payment of principal pursuant to a
note, installment receivable or otherwise, but only as and when received)
received by any Loan Party pursuant to such Asset Disposition net of (i) the
direct costs relating to such sale, transfer or other disposition (including
sales commissions and legal, accounting and investment banking fees), (ii)
taxes paid or reasonably estimated by the Company to be payable as a result
thereof (after taking into account any available tax credits or deductions and
any tax sharing arrangements), (iii) amounts required to be applied to the
repayment of any Debt secured by a Lien on the asset subject to such Asset
Disposition (other than the Loans) and (iv) reserves required to be
maintained in accordance with GAAP relating to such Asset Disposition; provided
that once GAAP allows such reserves to be released, such reserves will be
applied as would have been required had GAAP not required such reserves to be
maintained;


 


(b)                                 with
respect to any issuance of Capital Securities, the aggregate cash proceeds
received by any Loan Party pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriters’ commissions); and


 


(c)                                  with
respect to any issuance of Debt, the aggregate cash proceeds received by any
Loan Party pursuant to such issuance, net of the direct costs of such issuance
(including up-front, underwriters’ and placement fees).


 


Non-U.S. Participant - see Section 7.6(d).


 


Non-Use Fee Rate - see the definition of
Applicable Margin.


 


Note means a promissory note substantially in
the form of Exhibit A.


 


Notice of Borrowing - see Section 2.2.2.


 


Notice of Conversion/Continuation - see Section
2.2.3.


 


Obligations means all obligations (monetary
(including post-petition interest, allowed or not) or otherwise) of any Loan
Party under this Agreement and any other Loan Document including Attorney Costs
and any reimbursement obligations of each Loan Party in respect of Letters of Credit
and surety bonds, all Hedging Obligations permitted hereunder which are owed to
any Lender or its Affiliate, and all Bank Products Obligations, all in each
case howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due.


 


11

















 


Operating Lease means any lease of (or other
agreement conveying the right to use) any real or personal property by any Loan
Party, as lessee, other than any Capital Lease.


 


PBGC means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its functions under
ERISA.


 


P-D means P-D Holdings Corp.


 


Participant - see Section 16.6.2.


 


Pension Plan means a “pension plan”, as such
term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA
or the minimum funding standards of ERISA (other than a Multiemployer Pension
Plan), and as to which the Company or any member of the Controlled Group may
have any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.


 


Perfection Certificate means a perfection
certificate executed and delivered to the Administrative Agent by a Loan Party.


 


Permitted Acquisition means any Acquisition by
the Company or any other Borrower where each of the following conditions are
met:


 


(a)                                  the
business or division acquired are for use, or the Person acquired is engaged
(such acquired business, division or Person are referred to herein as the “Acquired
Entity”) in the same or similar businesses engaged in by the Borrowers on
the Closing Date;


 


(b)                                 immediately
before and after giving effect to such Acquisition, no Event of Default or
Unmatured Event of Default shall exist;


 


(c)                                the
Acquired Entity has a positive EBITDA for the twelve-month period most recently
completed prior to such Acquisition;


 


(d)                               the
consideration paid or provided or to be paid or provided by any Loan Party in
connection with such Acquisition is solely cash, Subordinated Debt permitted by
Section 11.1(m), Earnout Obligations and/or the deferred purchase
price of such Acquisition (provided, that such Earnout Obligations
and/or the deferred purchase price of such Acquisition in the aggregate do not
exceed 20% of the purchase price of any Acquisition) and Capital Securities of
a Loan Party;


 


(e)                                  the
aggregate consideration paid or provided or to be paid or provided in
connection with (i) such Acquisition does not exceed (A) $10,000,000
in cash consideration and (B) $20,000,000 in overall consideration and
assumed liabilities and (ii) all Acquisitions during the term of this
Agreement does not exceed (A) $20,000,000 in cash consideration and (B)
$60,000,000 in over all consideration and assumed liabilities;


 


(f)                                    immediately
after giving effect to such Acquisition, the Company is in pro forma compliance
(as determined on a Pro Forma Basis) with all the financial ratios and
restrictions set forth in Sections 11.13.1, 11.13.2 and 11.13.3
(provided that for purposes of calculating the Interest Charge Coverage
Ratio, Capital Expenditures of the Acquired Entity shall not be included in such
calculation) and the Company shall demonstrate such compliance in a certificate
of a Senior Officer of the Company delivered to the Administrative Agent and
the Lenders ten (10) Business Days in advance of such Acquisition;


 


12

















 


(g)                                 in
the case of the Acquisition of any Person, the Acquisition is on a “friendly
basis” and the Board of Directors of such Person has approved such Acquisition;


 


(h)                                 reasonably
prior to such Acquisition, the Administrative Agent shall have received
complete executed or conformed copies of each material document, instrument and
agreement to be executed in connection with such Acquisition together with all
lien search reports and lien release letters and other documents as the Administrative
Agent may require to evidence the termination of Liens on the Acquired Entity;


 


(i)                                     not
less than ten (10) Business Days prior to such Acquisition, the Administrative
Agent shall have received an acquisition summary with respect to the Acquired Entity
to be acquired, such summary to include a reasonably detailed description
thereof (including financial information) and operating results (including
financial statements for the most recent twelve (12) month period for which
they are available and as otherwise available), the terms and conditions,
including economic terms, of the proposed Acquisition, and the Company’s
calculation of pro forma EBITDA relating thereto (as determined on a Pro Forma
Basis);


 


(j)                                     consents
have been obtained in favor of the Administrative Agent and the Lenders to the
collateral assignment of rights and indemnities under the related acquisition
documents;


 


(k)                                  after
giving effect to such Acquisition, the Revolving Loan Availability is equal to
or more than $5,000,000; and


 


(l)                                     the
provisions of Section 10.10 have been satisfied.


 


Permitted Lien means a Lien expressly
permitted hereunder pursuant to Section 11.2.


 


Person means any natural person, corporation,
partnership, trust, limited liability company, association, governmental
authority or unit, or any other entity, whether acting in an individual,
fiduciary or other capacity.


 


Pledge Agreements means, collectively, each
Pledge Agreement dated as of the date hereof and executed and delivered by one
or more of the Loan Parties, together with any joinders thereto and any other
Pledge Agreement executed by a Loan Party in each case in form and substance
satisfactory to the Administrative Agent and as amended, modified or
supplemented from time to time and “Pledge
Agreement” shall mean any thereof.


 


Pledged Subsidiary shall mean P-D, Poorman,
EPIQ Acquisition, Bankruptcy Services and each other Subsidiary of the Company
the Capital Securities of which are required to be pledged as Collateral
pursuant to Section 10.10.


 


Prime Rate means, for any day, the rate of
interest in effect for such day as publicly announced from time to time by the
Administrative Agent as its prime rate (whether or not such rate is actually
charged by the Administrative Agent), which is not intended to be the
Administrative Agent’s lowest or most favorable rate of interest at any one
time.  Any change in the Prime Rate
announced by the Administrative Agent shall take effect at the opening of
business on the day specified in the public announcement of such change; provided
that the Administrative Agent shall not be obligated to give notice of any
change in the Prime Rate.


 


Pro Forma Basis means with respect to any
Acquisition, such Acquisition shall be deemed to have occurred as of the first
day of the most recent Computation Period. 
Further, for purposes of making calculations on a “Pro Forma Basis”
hereunder, (a) income statement items (whether positive or negative)
attributable to the property, entities or business units that are the subject
of the applicable Acquisition shall be included to the extent relating to any
period prior to the date thereof and (b) Debt incurred in connection with


 


13

















 


such Acquisition shall be
deemed to have been incurred as of the first day of the applicable Computation
Period, with related interest expense imputed for the applicable period
assuming then-prevailing interest rates hereunder.


 


Pro Rata Share means:  (a) 
with respect to a Lender’s obligation to make Revolving Loans, participate
in Letters of Credit, reimburse the Issuing Lender, and receive payments of
principal, interest, fees, costs, and expenses with respect thereto,
(x) prior to the Revolving Commitment being terminated or reduced to zero,
the percentage obtained by dividing (i) such Lender’s Revolving Commitment, by
(ii) the aggregate Revolving Commitment of all Lenders and (y) from and after
the time the Revolving Commitment has been terminated or reduced to zero, the
percentage obtained by dividing (i) the aggregate unpaid principal amount of
such Lender’s Revolving Outstandings by (ii) the aggregate unpaid principal
amount of all Revolving Outstandings;


 


(b)                                 with
respect to a Lender’s obligation to make a Term A Loan and receive payments of
interest, fees, and principal with respect thereto, (x) prior to the making of
the Term A Loans, the percentage obtained by dividing (i) such Lender’s Term A Loan Commitment, by (ii) the
aggregate amount of all Lenders’ Term A Loan Commitments, and (y) from and
after the making of the Term A Loans, the percentage obtained by dividing (i)
the principal amount of such Lender’s Term A Loan by (ii) the principal
amount of all Term A Loans of all Lenders;


 


(c)                                  with
respect to a Lender’s obligation to make a Term B Loan and receive payments of interest, fees, and principal
with respect thereto, (x) prior to the making of the Term B Loans, the percentage obtained by dividing (i) such
Lender’s Term B Loan Commitment,
by (ii) the aggregate amount of all Lenders’ Term B Loan Commitments, and (y) from and after the making of
the Term B Loans, the percentage
obtained by dividing (i) the principal amount of such Lender’s Term B Loan by (ii) the principal
amount of all Term B Loans of all
Lenders; and


 


(d)                                 with
respect to all other matters as to a particular Lender, (x) during any period
when Revolving Commitments have not been terminated or Revolving Outstandings
or the Term A Loan has not been Finally Paid, the percentage obtained by
dividing (i) such Lender’s Revolving Commitment plus the aggregate
outstanding principal amount of Term A Loans held by such Lender, by (ii) the
aggregate amount of Revolving Commitment of all Lenders plus the
aggregate outstanding principal amount of Term A Loans; provided that in
the event the Commitments have been terminated or reduced to zero, Pro Rata
Share shall be the percentage obtained by dividing (A) the principal amount of
such Lender’s Revolving Outstandings plus the unpaid principal amount of
such Lender’s Term A Loan by (B) the principal amount of all outstanding
Revolving Outstandings plus the unpaid outstanding principal amount of
all Term A Loans of all Lenders or (y) at any other time, the percentage
obtained by dividing (i) the aggregate outstanding principal amount of
Term B Loans held by such Lender, by (ii) the aggregate outstanding principal
amount of the Term B Loan held of all Lenders.


 


Proceeding means any voluntary or involuntary
proceeding commenced by or against any Borrower under any provision of the
Bankruptcy Code, or under any other bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal moratoria,
compositions, extensions generally with its creditors, or proceedings seeking
dissolution, receivership, reorganization, arrangement, or other similar
relief.


 


Regulation D means Regulation D of the
FRB.


 


Regulation U means Regulation U of the FRB.


 


Related Agreements means the Merger Agreement
and the Merger Side Letter.


 


Related Transactions means the transactions
contemplated by the Related Agreements.


 


14

















 


Replacement Lender - see Section 8.7(b).


 


Reportable Event means a reportable event as
defined in Section 4043 of ERISA and the regulations issued thereunder as to
which the PBGC has not waived the notification requirement of Section 4043(a),
or the failure of a Pension Plan to meet the minimum funding standards of
Section 412 of the Code (without regard to whether the Pension Plan is a plan
described in Section 4021(a)(2) of ERISA) or under Section 302 of ERISA.


 


Required Lenders means, at any time, Lenders
whose Pro Rata Shares exceed 662/3% as determined
pursuant to clause (d) of the definition of
“Pro Rata Share”.


 


Required Term B Lenders means, at any time,
Lenders holding at least 662/3% of the outstanding
principal amount of the Term B Loans.


 


Restructure Securities means (a) any Capital
Securities issued by a Borrower, and (b) any debt obligations that are in all
respects subordinate and junior in right of payment, to at least the same extent
as the Subordinated Indebtedness, to the Final Payment of all Senior
Indebtedness.


 


Revolving Commitment means, in the aggregate,
$25,000,000, as reduced from time to time pursuant to Section 6.1 and,
with respect to any Lender, such Lenders Pro Rata Share of such amount as set
forth on Annex A.


 


Revolving Loan - see Section 2.1.1.


 


Revolving Loan Availability means, at any
time, the remainder of (a) the aggregate Revolving Commitments at such
time minus the (b) aggregate
Revolving Outstandings at such time.


 


Revolving Outstandings means, at any time, the
sum of (a) the aggregate principal amount of all outstanding Revolving Loans, plus (b) the Stated Amount of all Letters
of Credit.


 


SEC means the Securities and Exchange
Commission or any other governmental authority succeeding to any of the
principal functions thereof.


 


Senior Agent means LaSalle Bank National
Association, as Administrative Agent, or any other Person appointed by the
holders of the Senior Indebtedness as administrative agent for purposes of this
Agreement and the other Loan Documents, together with the successors and
assigns of all of the foregoing.


 


Senior Covenant Default means any Event of
Default with respect to the covenants contained in Section 11.13.


 


Senior Debt means all Debt for borrowed money
of the Company and its Subsidiaries other than Subordinated Debt.


 


Senior Debt to EBITDA Ratio means, as of the
last day of any Fiscal Quarter, the ratio of (a) Senior Debt (less Cash and
Cash Equivalents) as of such day to (b) EBITDA of the Company and its
Subsidiaries for the Computation Period ending on such day.


 


Senior Indebtedness means all obligations,
liabilities and indebtedness of every nature of any Borrower or any Loan Party
from time to time owed to the Senior Agent or any Senior Lender under the Loan
Documents (other than amounts constituting Subordinated Indebtedness),
including the principal amount of all debts, claims and indebtedness, accrued
and unpaid interest and all premium, fees, costs and expenses, whether primary,
secondary, direct, contingent, fixed or otherwise, heretofore, now and from
time to time hereafter owing, due or payable, whether before or after the
filing of a Proceeding, including any Hedging Obligations


 


15

















 


and Bank Product Obligations at
any time due and owing to any Senior Lender, together with any interest
accruing thereon after the commencement of a Proceeding, without regard to
whether or not such interest is allowed in any Proceeding; provided that
notwithstanding anything to the contrary above, in no event shall Senior
Indebtedness include any obligation, liability or indebtedness related to the
Term B Loan.  Senior Indebtedness shall
be deemed to be outstanding until it is Finally Paid.


 


Senior Lender means each Lender hereunder in
its capacity as a holder of Senior Indebtedness.


 


Senior Officer means, with respect to any Loan
Party, any of the chief executive officer, the chief financial officer, the
chief operating officer or the treasurer of such Loan Party.


 


Senior Payment Default means any Event of
Default under the Loan Documents resulting from the failure to pay, by the time
required therefor, any principal, interest, fees or other obligations under the
Loan Documents with respect to Senior Indebtedness including any default in
payment of any Senior Indebtedness after acceleration thereof.


 


Stated Amount means, with respect to any
Letter of Credit at any date of determination, (a) the maximum aggregate amount
available for drawing thereunder under any and all circumstances plus (b) the
aggregate amount of all unreimbursed payments and disbursements under such
Letter of Credit.


 


Subordinated Debt means (a) the Term B Loans
and (b) any other unsecured Debt of the Company which has subordination terms,
covenants, pricing and other terms which have been approved in writing by the
Required Lenders.


 


Subordinated Indebtedness means all
obligations, liabilities and indebtedness of every nature of any Borrower or
any Loan Party from time to time owed to any Subordinated Lender under the Loan
Documents relating to the Term B Loan, including the principal amount of all
debts, claims and indebtedness, accrued and unpaid interest and all premium,
fees, costs and expenses, whether primary, secondary, direct, contingent, fixed
or otherwise, heretofore, now and from time to time hereafter owing, due or
payable, whether before or after the filing of a Proceeding (including any
amounts payable by any Borrower or any Loan Party in connection with put,
redemption, repurchase or repurchase rights under any warrants or any other
Capital Securities of any Borrower or any Loan Party held by any Subordinated
Lender), together with any interest accruing thereon after the commencement of
a Proceeding, without regard to whether or not such interest is allowed in any
Proceeding.


 


Subordinated Lender Remedies means any action
to commence judicial enforcement of any rights or remedies for payment of any
Subordinated Indebtedness (including, without limitation, the initiation of any
insolvency, bankruptcy, liquidation, readjustment, reorganization or other
similar proceedings relative to a Borrower).


 


Subordinated Lenders means each Lender
hereunder in its capacity as a holder of Subordinated Indebtedness.


 


Subsidiary means, with respect to any Person,
a corporation, partnership, limited liability company or other entity of which
such Person owns, directly or indirectly, such number of outstanding Capital
Securities as have more than 50% of the ordinary voting power for the election of
directors or other managers of such corporation, partnership, limited liability
company or other entity.  Unless the
context otherwise requires, each reference to Subsidiaries herein shall be a
reference to Subsidiaries of the Company.


 


Taxes means any and all present and future
taxes, duties, levies, imposts, deductions, assessments, charges or
withholdings, and any and all liabilities (including interest and penalties and
other additions to taxes) with respect to the foregoing, but excluding Excluded
Taxes.


 


16

















 


Term A Loan Commitment means, in the
aggregate, $45,000,000 and, with respect to any Lender, such Lenders Pro Rata
Share of such amount as set forth on Annex A


 


Term A Loan Termination Date means the earlier
to occur of (a) July 31, 2006 or (b) such other date on the Term A
Loans are repaid or are required to be paid pursuant to Section 6
or 13.


 


Term A Loans - see Section 2.1.2.


 


Term B Loan Commitment means, in the
aggregate, $30,000,000 and, with respect to any Lender, such Lenders Pro Rata
Share of such amount as set forth on Annex A.


 


Term B Loan Termination Date means the earlier
to occur of (a) December 31, 2006 or (b) such other date on which the Term B
Loans are repaid or are required to be paid pursuant to Section 6
or 13.


 


Term B Loans - see Section 2.1.2.


 


Term Loans means the Term A Loans and the Term
B Loans.


 


Termination Date means, with respect to the
Revolving Loans, the earlier to occur of (a) July 31, 2006 or (b)
such other date on which the Commitments terminate pursuant to Section 6
or 13.


 


Termination Event means, with respect to a
Pension Plan that is subject to Title IV of ERISA, (a) a Reportable Event, (b)
the withdrawal of the Company or any other member of the Controlled Group from
such Pension Plan during a plan year in which Company or any other member of
the Controlled Group was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or was deemed such under Section 4068(f) of ERISA, (c) the
termination of such Pension Plan, the filing of a notice of intent to terminate
such Pension Plan or the treatment of an amendment of such Pension Plan as a
termination under Section 4041 of ERISA, (d) the institution by the PBGC of
proceedings to terminate such Pension Plan or (e) any event or condition that
could constitute grounds under Section 4042 of ERISA for the termination of, or
appointment of a trustee to administer, such Pension Plan.


 


Total Debt means all Debt of the Company and
its Subsidiaries, determined on a consolidated basis, excluding (a) contingent
obligations in respect of Contingent Liabilities (except to the extent (i)
constituting Contingent Liabilities in respect of Debt of a Person other than
any Loan Party and (ii) any undrawn Letters of Credit), (b) Hedging Obligations
and (c) Debt of the Company to Subsidiaries and Debt of Subsidiaries to
the Company or to other Subsidiaries.


 


Total Debt to EBITDA Ratio means, as of the
last day of any Fiscal Quarter, the ratio of (a) Total Debt (less Cash and Cash
Equivalents) as of such day to (b) EBITDA of the Company and its Subsidiaries
for the Computation Period ending on such day.


 


Total Plan Liability means, at any time, the
present value of all vested and unvested accrued benefits under all Pension
Plans, determined as of the then most recent valuation date for each Pension
Plan, using PBGC actuarial assumptions for single employer plan terminations.


 


type - see Section 2.2.1.


 


UCC is defined in the Guaranty and Collateral
Agreement.


 


Unadjusted EBITDA means, for any period,
Consolidated Net Income of the Company and its Subsidiaries for such period plus,
to the extent deducted in determining such Consolidated Net Income, Interest
Expense, income tax expense, depreciation, amortization and other non-cash
charges, for such period without duplication and all as determined in
accordance with GAAP.


 


17

















 


Unfunded Liability means the amount (if any)
by which the present value of all vested and unvested accrued benefits under
all Pension Plans exceeds the fair market value of all assets allocable to
those benefits, all determined as of the then most recent valuation date for
each Pension Plan, using PBGC actuarial assumptions for single employer plan
terminations.


 


Unmatured Event of Default means any event
that, if it continues uncured, will, with lapse of time or notice or both,
constitute an Event of Default.


 


Withholding Certificate - see Section
7.6(d).


 


Wholly-Owned Subsidiary means, as to any
Person, a Subsidiary all of the Capital Securities of which (except directors’
qualifying Capital Securities) are at the time directly or indirectly owned by
such Person and/or another Wholly-Owned Subsidiary of such Person.


 


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


 


(b)                                 Section, Annex, Schedule and Exhibit references are to this
Agreement unless otherwise specified.


 


(c)                                  The term “including” is not limiting and
means “including without limitation.”


 


(d)                                 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.”


 


(e)                                  Unless otherwise expressly provided
herein, (i) references to agreements (including this Agreement and the
other Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, supplements and other
modifications thereto, but only to the extent such amendments, restatements,
supplements and other modifications are not prohibited by the terms of any Loan
Document, and (ii) references to any statute or regulation shall be
construed as including all statutory and regulatory provisions amending,
replacing, supplementing or interpreting such statute or regulation.


 


(f)                                    This Agreement and the other Loan
Documents may use several different limitations, tests or measurements to
regulate the same or similar matters. 
All such limitations, tests and measurements are cumulative and each
shall be performed in accordance with its terms.


 


(g)                                 This Agreement and the other Loan
Documents are the result of negotiations among and have been reviewed by counsel
to the Administrative Agent, the Company, the Lenders and the other parties
thereto and are the products of all parties. 
Accordingly, they shall not be construed against the Administrative
Agent or the Lenders merely because of the Administrative Agent’s or Lenders’
involvement in their preparation.


 


(h)                                 Unless otherwise defined or specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with GAAP as in
effect from time to time, applied on a basis consistent (except for such
changes approved by the Company’s independent public accountants) with the most
recent audited consolidated financial statement of the Company delivered
pursuant to Section 10.1.1.


 


18

















 


SECTION 2                                   COMMITMENTS OF THE
LENDERS; BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES.


 


2.1                                 Commitments.  On and subject to the terms and conditions
of this Agreement, each of the Lenders, severally and for itself alone, agrees
to make loans to, and to issue or participate in letters of credit for the
account of, the Borrowers as follows:


 


2.1.1                        Revolving Commitment. 
Each Lender with a Revolving Commitment agrees to make loans on a
revolving basis (“Revolving Loans”) from time to time until the
Termination Date in such Lender’s Pro Rata Share of such aggregate amounts as
the Borrowers may request from all Lenders; provided that the Revolving
Outstandings will not at any time exceed Revolving Commitment.  All Borrowers shall be jointly and severally
liable for the Revolving Loans and all other Obligations.


 


2.1.2                        Term Loan Commitment. 
Each Lender with a Term A Loan Commitment agrees to make a loan to the
Borrowers (each such loan, a “Term A Loan”) on the Closing Date in such
Lender’s Pro Rata Share of the Term A Loan Commitment.  Each Lender with a Term B Loan Commitment
agrees to make a loan to the Borrowers (each such loan, a “Term B Loan”)
on the Closing Date in such Lender’s Pro Rata Share of the Term B Loan
Commitment.  The Commitments of the
Lenders to make Term Loans shall expire concurrently with the making of the
Term Loans on the Closing Date.  All
Borrowers shall be jointly and severally liable for the Term Loans and all
other Obligations.


 


2.1.3                        L/C Commitment. 
Subject to Section 2.3.1, the Issuing Lender agrees to issue
Letters of Credit, in each case containing such terms and conditions as are
permitted by this Agreement and are reasonably satisfactory to the Issuing
Lender (each, a “Letter of Credit”), at the request of and for the
account of the Company from time to time before the scheduled Termination Date
and, as more fully set forth in Section 2.3.2, each Lender agrees
to purchase a participation in each such Letter of Credit; provided that
(a) the aggregate Stated Amount of all Letters of Credit shall not at any time
exceed $5,000,000 and (b) the Revolving Outstandings shall not at any time
exceed Revolving Commitment.


 


2.2                                 Loan
Procedures.


 


2.2.1                        Various Types of Loans. 
Each Revolving Loan shall be, and each Term A Loan may be divided into
tranches which are either a Base Rate Loan or a LIBOR Loan (each a “type”
of Loan), as the Borrowers shall specify in the related notice of borrowing or
conversion pursuant to Section 2.2.2 or 2.2.3.  Each Term B Loan shall only bear interest as
set forth in the Term B Loan Note. 
LIBOR Loans having the same Interest Period are sometimes called a “Group”
or collectively “Groups”.  Base
Rate Loans and LIBOR Loans may be outstanding at the same time, provided
that not more than eight (8)  different
Groups of LIBOR Loans shall be outstanding at any one time.  All borrowings, conversions and repayments
of Revolving Loans shall be effected so that each Lender will have a ratable
share (according to its Pro Rata Share) of all types and Groups of Revolving
Loans.  Notwithstanding the foregoing or
any other provision of this Agreement, the Borrowers may not select any
Interest Period for a LIBOR Loan which is longer than one month prior to the
earlier of (x) ninety (90) days after the Closing Date and (y) the date
that the Administrative Agent notifies the Borrowers that it has completed its
primary syndication of the Loans and the Commitments.


 


2.2.2                        Borrowing Procedures. 
The Borrowers shall give written notice (each such written notice, a “Notice
of Borrowing”) substantially in the form of Exhibit E or telephonic
notice (followed immediately by a Notice of Borrowing) to the Administrative
Agent of each proposed borrowing not later than (a) in the case of a Base
Rate borrowing, 11:00 A.M., Chicago time, on the proposed date of such
borrowing, and (b) in the case of a LIBOR borrowing, 11:00 A.M.,
Chicago time, at least three Business Days prior to the proposed date of such
borrowing.  Each such notice shall be
effective upon receipt by the Administrative Agent, shall be irrevocable, and
shall specify the date, amount and type of borrowing and, in the case of a
LIBOR borrowing, the initial Interest Period therefor.  Promptly upon receipt of such notice, the
Administrative Agent shall advise each Lender thereof.  Not later than 1:00 P.M., Chicago time, on
the date of a proposed borrowing, each


 


19

















 


Lender shall provide the
Administrative Agent at the office specified by the Administrative Agent with
immediately available funds covering such Lender’s Pro Rata Share of such
borrowing and, so long as the Administrative Agent has not received written notice
that the conditions precedent set forth in Section 12 with respect
to such borrowing have not been satisfied, the Administrative Agent shall pay
over the funds received by the Administrative Agent to the Borrowers on the
requested borrowing date.  Each borrowing
shall be on a Business Day.  Each Base
Rate borrowing shall be in an aggregate amount of at least $500,000 and an
integral multiple of $500,000, and each LIBOR borrowing shall be in an
aggregate amount of at least $500,000 and an integral multiple of at least
$250,000.


 


2.2.3                        Conversion and Continuation Procedures. 
(a)  Subject to Section 2.2.1,
the Borrowers may, upon irrevocable written notice to the Administrative Agent
in accordance with clause (b) below:


 


(A)                               elect, as of any Business Day, to convert
any Revolving Loans or Term A Loans (or any part thereof in an aggregate amount
not less than $500,000 a higher integral multiple of $250,000) into Revolving
Loans or Term A Loans of the other type; or


 


(B)                                 elect, as of the last day of the applicable
Interest Period, to continue any Revolving Loans or Term A Loans that are then
LIBOR Loans having Interest Periods expiring on such day (or any part thereof
in an aggregate amount not less than $500,000 or a higher integral multiple of
$250,000) for a new Interest Period;


 


provided
that after giving effect to any prepayment, conversion or continuation, the
aggregate principal amount of each Group of Revolving Loans or Term A Loans
that are then LIBOR Loans shall be at least $500,000 and an integral multiple
of $250,000.


 


(b)                                 The Borrowers shall give written notice
(each such written notice, a “Notice of Conversion/Continuation”)
substantially in the form of Exhibit F or telephonic notice (followed
immediately by a Notice of Conversion/Continuation) to the Administrative Agent
of each proposed conversion or continuation not later than (i) in the case of
conversion of Revolving Loans or Term A Loans into Base Rate Loans, 11:00 A.M.,
Chicago time, on the proposed date of such conversion and (ii) in the case of
conversion into or continuation of Revolving Loans or Term A Loans that are
then LIBOR Loans, 11:00 A.M., Chicago time, at least three (3) Business
Days prior to the proposed date of such conversion or continuation, specifying
in each case:


 


(A)                               the proposed date of conversion or
continuation;


 


(B)                                 the aggregate amount of such Revolving
Loans or Term A Loans (as the case may be) to be converted or continued;


 


(C)                                 the type of such Revolving Loans or Term
A Loans (as the case may be) resulting from the proposed conversion or
continuation; and


 


(D)                                in the case of conversion of such
Revolving Loans or Term A Loans (as the case may be) into, or continuation of,
LIBOR Loans, the duration of the requested Interest Period therefor.


 


(c)                                  If upon the expiration of any Interest
Period applicable to such Revolving Loans or Term A Loans (as the case may be)
as LIBOR Loans, the Company has failed to select timely a new Interest Period
to be applicable to such LIBOR Loans, the Company shall be deemed to have
elected to convert such LIBOR Loans into Base Rate Loans effective on the last
day of such Interest Period.


 


(d)                                 The Administrative Agent will promptly
notify each Lender of its receipt of a Notice of Conversion/Continuation
pursuant to this Section 2.2.3 or, if no timely notice is provided by
the Company, of the details of any automatic conversion.


 


20

















 


(e)                                  Any conversion of any Revolving Loans or
Term A Loans (as the case may be) to a LIBOR Loan on a day other than the last
day of an Interest Period therefor shall be subject to Section 8.4.


 


2.3                                 Letter
of Credit Procedures.


 


2.3.1                        L/C Applications. 
The Company shall execute and deliver to the Issuing Lender the Master
Letter of Credit Agreement from time to time in effect.  The Company shall give notice to the
Administrative Agent and the Issuing Lender of the proposed issuance of each
Letter of Credit on a Business Day which is at least three Business Days (or
such lesser number of days as the Administrative Agent and the Issuing Lender
shall agree in any particular instance in their sole discretion) prior to the
proposed date of issuance of such Letter of Credit.  Each such notice shall be accompanied by an L/C Application, duly
executed by the Company and in all respects satisfactory to the Administrative
Agent and the Issuing Lender, together with such other documentation as the
Administrative Agent or the Issuing Lender may request in support thereof, it
being understood that each L/C Application shall specify, among other things,
the date on which the proposed Letter of Credit is to be issued, the expiration
date of such Letter of Credit (which shall not be later than the scheduled
Termination Date (unless such Letter of Credit is Cash Collateralized)) and
whether such Letter of Credit is to be transferable in whole or in part.  Any Letter of Credit outstanding after the
scheduled Termination Date which is Cash Collateralized for the benefit of the
Issuing Lender shall be the sole responsibility of the Issuing Lender.  So long as the Issuing Lender has not
received written notice that the conditions precedent set forth in Section
12 with respect to the issuance of such Letter of Credit have not been
satisfied, the Issuing Lender shall issue such Letter of Credit on the
requested issuance date.  The Issuing
Lender shall promptly advise the Administrative Agent of the issuance of each
Letter of Credit and of any amendment thereto, extension thereof or event or
circumstance changing the amount available for drawing thereunder.  In the event of any inconsistency between
the terms of the Master Letter of Credit Agreement, any L/C Application and the
terms of this Agreement, the terms of this Agreement shall control.


 


2.3.2                        Participations in Letters of Credit. 
Concurrently with the issuance of each Letter of Credit, the Issuing
Lender shall be deemed to have sold and transferred to each Lender with a
Revolving Commitment, and each such Lender shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Lender’s Pro Rata Share, in such Letter of Credit and the Company’s
reimbursement obligations with respect thereto.  If the Company does not pay any reimbursement obligation when
due, the Company shall be deemed to have immediately requested that the Lenders
make a Revolving Loan which is a Base Rate Loan in a principal amount equal to
such reimbursement obligations.  The
Administrative Agent shall promptly notify such Lenders of such deemed request
and, without the necessity of compliance with the requirements of Section
2.2.2, 12.2 or otherwise such Lender shall make available to the
Administrative Agent its Pro Rata Share of such Loan.  The proceeds of such Loan shall be paid over by the
Administrative Agent to the Issuing Lender for the account of the Company in
satisfaction of such reimbursement obligations.  For the purposes of this Agreement, the unparticipated portion of
each Letter of Credit shall be deemed to be the Issuing Lender’s
“participation” therein.  The Issuing
Lender hereby agrees, upon request of the Administrative Agent or any Lender,
to deliver to the Administrative Agent or such Lender a list of all outstanding
Letters of Credit issued by the Issuing Lender, together with such information
related thereto as the Administrative Agent or such Lender may reasonably
request.


 


2.3.3                        Reimbursement Obligations. 
(a)  The Borrowers hereby jointly
and severally and unconditionally and irrevocably agree to reimburse the
Issuing Lender for each payment or disbursement made by the Issuing Lender
under any Letter of Credit honoring any demand for payment made by the
beneficiary thereunder, in each case on the date that such payment or disbursement
is made subject to the terms of the Master Letter of Credit Agreement.  Any amount not reimbursed on the date of
such payment or disbursement shall bear interest from the date of such payment
or disbursement to the date that the Issuing Lender is reimbursed by the
Borrowers therefor, payable on demand, at a rate per annum equal to the Base
Rate from time to time in effect plus the Base Rate Margin from time to
time in effect plus, beginning on the third Business Day after receipt
of notice from the Issuing Lender of such payment or disbursement, 2%.  The


 


21

















 


Issuing Lender shall notify the
Company and the Administrative Agent whenever any demand for payment is made
under any Letter of Credit by the beneficiary thereunder; provided that
the failure of the Issuing Lender to so notify the Company shall not affect the
rights of the Issuing Lender or the Lenders in any manner whatsoever.


 


(b)                                 The Borrowers’ joint and several
reimbursement obligations hereunder shall be irrevocable and unconditional
under all circumstances (other than as set forth in the Master Letter of Credit
Agreement), including (i) any lack of validity or enforceability of any Letter
of Credit, this Agreement or any other Loan Document, (ii) the existence of any
claim, set-off, defense or other right which any Loan Party may have at any
time against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Issuing Lender, any Lender or any other Person,
whether in connection with any Letter of Credit, this Agreement, any other Loan
Document, the transactions contemplated herein or any unrelated transactions
(including any underlying transaction between any Loan Party and the
beneficiary named in any Letter of Credit), (iii) the validity, sufficiency or
genuineness of any document which the Issuing Lender has determined complies on
its face with the terms of the applicable Letter of Credit, even if such
document should later prove to have been forged, fraudulent, invalid or
insufficient in any respect or any statement therein shall have been untrue or
inaccurate in any respect, or (iv) the surrender or impairment of any security
for the performance or observance of any of the terms hereof.  Without limiting the foregoing, no action or
omission whatsoever by the Administrative Agent or any Lender (excluding any
Lender in its capacity as the Issuing Lender) under or in connection with any
Letter of Credit or any related matters shall result in any liability of the
Administrative Agent or any Lender to the Borrowers, or relieve any Borrowers
of any of their obligations hereunder to any such Person.


 


2.3.4                        Funding by Lenders to Issuing Lender. 
If the Issuing Lender makes any payment or disbursement under any Letter
of Credit and (a) the Borrowers have not reimbursed the Issuing Lender in full
for such payment or disbursement by 11:00 A.M., Chicago time, on the date of
such payment or disbursement, (b) a Revolving Loan may not be made in
accordance with Section 2.3.2 or (c) any reimbursement received by the
Issuing Lender from any Borrower is or must be returned or rescinded upon or
during any bankruptcy or reorganization of any Borrower or otherwise, each
other Lender with a Revolving Commitment shall be obligated to pay to the
Administrative Agent for the account of the Issuing Lender, in full or partial
payment of the purchase price of its participation in such Letter of Credit,
its Pro Rata Share of such payment or disbursement (but no such payment shall
diminish the obligations of the Borrowers under Section 2.3.3),
and, upon notice from the Issuing Lender, the Administrative Agent shall
promptly notify each other Lender thereof. 
Each other Lender with a Revolving Commitment irrevocably and
unconditionally agrees to so pay to the Administrative Agent in immediately
available funds for the Issuing Lender’s account the amount of such other
Lender’s Pro Rata Share of such payment or disbursement.  If and to the extent any such Lender shall
not have made such amount available to the Administrative Agent by 2:00 P.M.,
Chicago time, on the Business Day on which such Lender receives notice from the
Administrative Agent of such payment or disbursement (it being understood that
any such notice received after noon, Chicago time, on any Business Day shall be
deemed to have been received on the next following Business Day), such Lender
agrees to pay interest on such amount to the Administrative Agent for the
Issuing Lender’s account forthwith on demand, for each day from the date such
amount was to have been delivered to the Administrative Agent to the date such
amount is paid, at a rate per annum equal to (a) for the first three days after
demand, the Federal Funds Rate from time to time in effect and (b) thereafter,
the Base Rate from time to time in effect. 
Any Lender’s failure to make available to the Administrative Agent its
Pro Rata Share of any such payment or disbursement shall not relieve any other
Lender with a Revolving Commitment of its obligation hereunder to make
available to the Administrative Agent such other Lender’s Pro Rata Share of
such payment, but no Lender shall be responsible for the failure of any other
Lender to make available to the Administrative Agent such other Lender’s Pro
Rata Share of any such payment or disbursement.


 


2.4                                 Commitments
Several.  The failure of any Lender
to make a requested Loan on any date shall not relieve any other Lender of its
obligation (if any) to make a Loan on such date, but no Lender shall be
responsible for the failure of any other Lender to make any Loan to be made by
such other Lender.


 


22

















 


2.5                                 Certain
Conditions.  Notwithstanding any
other provision of this Agreement, no Lender shall have an obligation to make
any Loan, or to permit the continuation of or any conversion into any LIBOR
Loan, and the Issuing Lender shall not have any obligation to issue any Letter
of Credit, if an Event of Default or Unmatured Event of Default exists. 


 


2.6                                 Joint
and Several.  (a)  The obligations of each Borrower under this
Agreement and the Loan Documents shall be joint and several and, to the fullest
extent permitted by applicable law, shall not be affected by (i) the failure of
Administrative Agent, any Lender, or any of their successors or assigns, or any
holder of the Notes or any of the Obligations to assert any claim or demand or
to exercise or enforce any right, power or remedy against any other Borrower or
the Collateral or otherwise, (ii) any extension or renewal for any period
(whether or not longer than the original period) or exchange of any of the
Obligations or the release or compromise of any obligation of any nature of any
Person with respect thereto, (iii) the surrender, release or exchange of all or
any part of any property (including without limitation the Collateral) securing
payment, performance and observance of any of the Obligations or the compromise
or extension or renewal for any period (whether or not longer than the original
period) of any obligations of any nature of any Person with respect to any such
property, (iv) the invalidity or unenforceability of any of the Obligations as
against any other Borrower, any other guarantor thereof or any other Person,
and (v) any other act, matter or thing which would or might, in the absence of
this provision, operate to release, discharge or otherwise prejudicially affect
the obligations of Borrowers, other than Final Payment.


 


(b)                                 To the fullest extent permitted by
applicable law and except to the extent that any of the following are expressly
required by the provisions of any of the Loan Documents, each Borrower hereby
waives (i) presentment, demand for payment and protest of nonpayment of any of
the Obligations, and notices of protest, dishonor or nonperformance, (ii)
notice of any Event of Default or Unmatured Event of Default or Administrative
Agent’s or any Lender’s inability to enforce performance of the other
Borrowers’ obligations to any holder of Obligations, (iii) demand for
performance or observance of, and any enforcement of any provision of, or any
pursuit or exhaustion of rights or remedies with respect to any security for
the Obligations or against the other Borrowers or any other Loan Party or
guarantor of, the Obligations pursuant to this Agreement or any other Loan
Document or otherwise, and any requirements of diligence or promptness on the
part of any Lender or any holder of the Obligations in connection therewith,
(iv) any action or nonaction on the part of Administrative Agent or any Lender
or any holder of Obligations which may impair or prejudice the rights of any
Borrower, including without limitation subrogation rights or rights to obtain
exoneration, contribution, indemnification or any other reimbursement or
compensation from any other Borrower, any other guarantor or borrowers in
respect of the Obligations or any other Person, (v) failure or delay to perfect
or continue the perfection of any security interest in any Collateral, (vi) any
action which harms or impairs the value of, or any failure to preserve or
protect the value of, any Collateral, (vii) any defense based upon an election
of remedies by Administrative Agent or any Lender or the holders of the
Obligations, (viii) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal, (ix) any and all
demands and notices of every kind and description, including notice of the
creation of any of the Obligations, with respect to the foregoing or which may
be required to be given by any statute or rule of law and (x) all defenses
(other than indefeasible payment in full) which any Borrower may now or
hereafter have to the payment of the Obligations which could otherwise be
asserted by such Borrower.  In addition
to the defenses referred to above which have been expressly waived hereunder,
each Borrower waives all other defenses (other than indefeasible payment in
full) which it may now or hereafter have to the payment by it of the
Obligations.  No delay or omission on
the part of Administrative Agent or any Lender or any holder of any Obligation
or with respect to the Collateral shall operate as a waiver or relinquishment
of such right.  No action which
Administrative Agent or any Lender, the holder of any Obligation, any Borrower
or any other Loan Party may take or refrain from taking with respect to the
Obligations, including any amendments thereto or modifications thereof or
waivers with respect thereto, shall affect the provisions of this Agreement or
the obligations of Borrowers hereunder. 
None of the rights of Administrative Agent or any Lender or of any holder
of any Obligation shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of any of them or any Borrower or any other
Loan Party, by any noncompliance by any Borrower with the terms, provisions and
covenants of this


 


23

















 


Agreement, regardless of any
knowledge thereof which Administrative Agent or any Lender or any holder of the
Obligations may have or otherwise be charged with.  Each Borrower hereby agrees to waive, and does hereby absolutely
and irrevocably waive and relinquish the benefit and advantage of, and does
hereby covenant not to assert, any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force, which might
delay, prevent or otherwise impede the performance or enforcement of this
Agreement or any other Loan Document or the Obligations.  Each Borrower’s obligations under this Section
2.6 shall not be affected by the invalidity or unenforceability of any of
the Obligations as against the other Borrowers, any other guarantor thereof or
any other Person.  For purposes of this Section
2.6, the Obligations shall be due and payable when and as the same shall be
so due and payable under the terms of any Loan Document, notwithstanding the
fact that the collection or enforcement thereof may be stayed or enjoined under
Title 11 of the United States Code, as from time to time in effect, or other
applicable law, regulation or order.


 


(c)                                  To the fullest extent permitted by
applicable law, each Borrower hereby grants to Administrative Agent full power
in its uncontrolled discretion, without notice to such Borrower, such notice
being hereby expressly waived, and without in any way affecting the joint and
several liability of such Borrower under this Agreement:


 


(i)                                     To waive compliance with, and any Event
of Default or Unmatured Event of Default under, and to consent to any amendment
to or modification of any term or provision of, or to give any waiver in
respect of, any other Loan Document, the Collateral, the Obligations or any
guarantee thereof (each as from time to time in effect);


 


(ii)                                   To grant any one or more extensions or
renewals of the Obligations (for any period, no matter how long), or any total
or partial release (by operation of law or otherwise), discharge, compromise or
settlement with respect to the obligations of any Borrower or any other Person
in respect of the Obligations, whether or not rights against the other
Borrowers under this Section 2.6 are reserved in connection therewith;


 


(iii)                                To take security in any form for the
Obligations, and to the extent permitted in any security agreement to consent
to (A) the addition to, (B) the substitution, exchange, surrender, release or
other disposition of, or (C) deal in any other manner with, all or any part of
any property contained in the Collateral whether or not the property, if any,
received upon the exercise of such power shall be of a character or value the
same as or different from the character or value of any property disposed of,
and to obtain, modify or release any present or future guarantees of the
Obligations and at any time after the occurrence and during the continuance of
an Event of Default to proceed against any of the Collateral or such guarantees
in any order;


 


(iv)                               To, at any time after the occurrence and
during the continuance of an Event of Default, collect or liquidate any of the
Obligations or the Collateral in any manner or to refrain from collecting or
liquidating any of the Obligations or the Collateral; and


 


(v)                                  To extend credit under this Agreement or
any other Loan Document, or otherwise, in such amount as Administrative Agent
or any Lender may determine, even though the condition of Borrowers (financial
or otherwise on an individual or consolidated basis) may have deteriorated
since the date hereof.


 


(d)                                 Each Borrower acknowledges and agrees
that it has made such investigation as it deems desirable of the risks
undertaken by such Borrower in entering into this Agreement and is fully
satisfied that it understands all such risks. 
Each Borrower hereby waives any obligation which may now or hereafter
exist on the part of Administrative Agent or any Lender or any holder of any
Obligation to inform such Person of the risks being undertaken by entering into
this Agreement or of any changes in such risks and, from and after the date
hereof, each Borrower undertakes to keep itself informed of such risks and any
changes therein.  Further,


 


24

















 


each Borrower hereby expressly
waives any duty which may now or hereafter exist on the part of Administrative
Agent or any Lender or any holder of any Obligation to disclose to such
Borrower any matter related to the business, operations, character, collateral,
credit or condition (financial or otherwise) of any Loan Party (including the
other Borrowers) or Affiliates or its or their properties or management,
whether now or hereafter known by any one or more of the Administrative Agent
and Lenders or any holder of any Obligation. 
Each Borrower represents, warrants and agrees that it assumes sole
responsibility for obtaining from each other Borrower all information
concerning this Agreement and all other Loan Documents and all other
information as to any other Loan Party and Affiliates or their properties or
management or anything relating to any of the above as such Borrower deems
necessary or desirable.


 


(e)                                  Each Borrower hereby covenants and agrees
that (i) it will not enforce or otherwise exercise any rights of reimbursement,
subrogation, contribution or other similar rights with respect to the
Obligations against any Person, including without limitation any other
guarantor of the Obligations or the other Borrowers, prior to the payment in
full of the Obligations and the termination of the Commitments hereunder, and
(ii) all Debt, claims and Obligations now or hereafter owing by the other
Borrowers to such Borrower are hereby subordinated to the prior payment in full
of the Obligations and are so subordinated as a claim against the other
Borrowers or any of their assets, whether such claim be in the ordinary course
of business or in the event of voluntary or involuntary liquidation,
dissolution, insolvency or bankruptcy, so that upon the occurrence and during
the continuance of an Unmatured Event of Default or Event of Default no payment
with respect to any such Debt, claim or liability will be made or received
while any of the Obligations (including Obligations relating to Letters of
Credit) are outstanding or prior to the termination of Lenders’ commitments
hereunder.


 


SECTION 3                                   EVIDENCING
OF LOANS.


 


3.1                                 Notes.  The Loans of each Lender shall be evidenced
by a Note, with appropriate insertions, payable to the order of such Lender in
a face principal amount equal to the sum of such Lender’s Revolving Commitment
plus the principal amount of such Lender’s Term Loans.


 


3.2                                 Recordkeeping.  The Administrative Agent, on behalf of each
Lender, shall record in its records, the date and amount of each Loan made by
each Lender, each repayment or conversion thereof and, in the case of each
LIBOR Loan, the dates on which each Interest Period for such Loan shall begin
and end.  The aggregate unpaid principal
amount so recorded shall be rebuttably presumptive evidence of the principal
amount of the Loans owing and unpaid. 
The failure to so record any such amount or any error in so recording
any such amount shall not, however, limit or otherwise affect the Obligations
of the Borrowers hereunder or under any Note to repay the principal amount of
the Loans hereunder, together with all interest accruing thereon.


 


SECTION 3                                   INTEREST.


 


4.1                                 Interest
Rates.  The Borrowers jointly and
severally promise to pay interest on the unpaid principal amount of each Loan
for the period commencing on the date of such Loan until such Loan is paid in
full as follows:


 


(a)                                  at
all times while a Revolving Loan or Term A Loan is a Base Rate Loan, at a rate
per annum equal to the sum of the Base Rate from time to time in effect plus the Base Rate Margin from time to
time in effect; and


 


(b)                                 at
all times while such Revolving Loan or Term A Loan is a LIBOR Loan, at a rate
per annum equal to the sum of the LIBOR Rate applicable to each Interest Period
for such Loan plus the LIBOR
Margin from time to time in effect;


 


(c)                                  with
respect to the Term B Loan, as set forth in the Note(s) for the Term B Loan;


 


25

















 


provided
that at any time an Event of Default exists, unless the Required Lenders
otherwise consent, the interest rate applicable to each Loan shall be increased
by 2% (and, in the case of Obligations not bearing interest, such Obligations
shall bear interest at the Base Rate applicable to Revolving Loans plus 2%), provided
further that such increase may thereafter be rescinded by the Required
Lenders, notwithstanding Section 16.1. 
Notwithstanding the foregoing, upon the occurrence of an Event of
Default under Section 13.1.1 or 13.1.4, such increase shall occur
automatically.


 


4.2                                 Interest
Payment Dates.  Except to the extent
otherwise provided in the Note(s) for the Term B Loan, accrued interest on each
Base Rate Loan shall be payable in arrears on the last day of each calendar
month and at maturity.  Accrued interest
on each LIBOR Loan shall be payable on the last day of each Interest Period
relating to such Loan (and, in the case of a LIBOR Loan with an Interest Period
in excess of three months, on the three-month anniversary of the first day of
such Interest Period), upon a prepayment of such Loan, and at maturity.  After maturity, and at any time an Event of
Default exists, accrued interest on all Loans shall be payable on demand.


 


4.3                                 Setting
and Notice of LIBOR Rates.  The
applicable LIBOR Rate for each Interest Period shall be determined by the
Administrative Agent, and notice thereof shall be given by the Administrative
Agent promptly to the Company and each Lender. 
Each determination of the applicable LIBOR Rate by the Administrative
Agent shall be conclusive and binding upon the parties hereto, in the absence
of demonstrable error.  The Administrative
Agent shall, upon written request of the Company or any Lender, deliver to the
Company or such Lender a statement showing the computations used by the
Administrative Agent in determining any applicable LIBOR Rate hereunder.


 


4.4                                 Computation
of Interest.  Interest shall be
computed for the actual number of days elapsed on the basis of a year of 360
days.  The applicable interest rate for
each Base Rate Loan shall change simultaneously with each change in the Base
Rate.


 


SECTION 5                                   FEES.


 


5.1                                 Non-Use
Fee.  The Borrowers jointly and
severally agree to pay to the Administrative Agent for the account of each
Lender a non-use fee, for the period from the Closing Date to the Termination
Date, at the Non-Use Fee Rate in effect from time to time of such Lender’s Pro
Rata Share (as adjusted from time to time) of the unused amount of the
Revolving Commitment.  For purposes of
calculating usage under this Section, the Revolving Commitment shall be deemed
used to the extent of Revolving Outstandings. 
Such non-use fee shall be payable in arrears on the last day of each
Fiscal Quarter and on the Termination Date for any period then ending for which
such non-use fee shall not have previously been paid.  The non-use fee shall be computed for the actual number of days
elapsed on the basis of a year of 360 days.


 


5.2                                 Letter
of Credit Fees.  (a)  The Borrowers jointly and severally agree to
pay to the Administrative Agent for the account of each Lender a letter of
credit fee for each Letter of Credit equal to the L/C Fee Rate in effect from
time to time of such Lender’s Pro Rata Share (as adjusted from time to time) of
the undrawn amount of such Letter of Credit (computed for the actual number of
days elapsed on the basis of a year of 360 days); provided that, unless the Required
Lenders otherwise consent, the rate applicable to each Letter of Credit shall
be increased by 2% at any time that an Event of Default exists.  Such letter of credit fee shall be payable
in arrears on the last day of each Fiscal Quarter and on the Termination Date
(or such later date on which such Letter of Credit expires or is terminated)
for the period from the date of the issuance of each Letter of Credit (or the
last day on which the letter of credit fee was paid with respect thereto) to
the date such payment is due or, if earlier, the date on which such Letter of
Credit expired or was terminated.


 


(b)                                 In
addition, with respect to each Letter of Credit, the Company agrees to pay to
the Issuing Lender, for its own account, (i) such fees and expenses as the
Issuing Lender customarily requires in connection with the issuance,
negotiation, processing and/or administration of letters of credit in similar


 


26

















 


situations and (ii) a letter of
credit fronting fee in the amount and at the times agreed to by the Company and
the Issuing Lender.


 


5.3                                 Administrative
Agent’s Fees.  The Borrowers jointly
and severally agree to pay to the Administrative Agent such agent’s fees as are
mutually agreed to from time to time by the Company and the Administrative
Agent.


 


5.4                                 Term
B Loan Fees.  In the event that the
Term B Loan is not Finally Paid (a) within 180 days of the Closing Date, a
non-refundable fee in the amount of 1% of the aggregate principal amount of
Term B Loan held by each Lender shall be payable to each such Lender and
(b) within 365 days of the Closing Date, an additional non-refundable fee
in the amount of 1.5% of the aggregate principal amount of Term B Loan held by
each Lender shall be payable to each such Lender, the fees referenced in
clauses (a) and (b) above shall be payable by the Borrowers on the earliest to
occur of (i) the Term B Loan Termination Date or (ii) the Final
Payment of the Term B Loan.


 


SECTION 6                                   REDUCTION
OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS.


 


6.1                                 Reduction
or Termination of the Revolving Commitment.


 


6.1.1                        Voluntary
Reduction or Termination of the Revolving Commitment.  The Company may from time to time on at
least five (5) Business Days’ prior written notice received by the
Administrative Agent (which shall promptly advise each Lender thereof)
permanently reduce the Revolving Commitment to an amount not less than the
Revolving Outstandings.  Any such
reduction shall be in an amount not less than $5,000,000
or a higher integral multiple of $1,000,000. 
Concurrently with any reduction of the Revolving Commitment to zero (0),
the Borrowers shall pay all interest on the Revolving Loans, all non-use fees
and all letter of credit fees and shall Cash Collateralize in full all obligations
arising with respect to the Letters of Credit.


 


6.1.2                        All
Reductions of the Revolving Commitment. 
All reductions of the Revolving Commitment shall reduce the Revolving
Commitment of each Lender with a Revolving Commitment ratably according to their
respective Pro Rata Shares.


 


6.2                                 Prepayments.


 


6.2.1                        Voluntary
Prepayments.  (a) The Borrowers
may from time to time prepay the Revolving Loans and the Term A Loans in whole
or in part; provided that the Company shall give the Administrative
Agent (which shall promptly advise each Lender) notice thereof not later than
11:00 A.M., Chicago time, on the day of such prepayment (which shall be a
Business Day), specifying the Loans to be prepaid and the date and amount of
prepayment.  Any such partial prepayment
shall be in an amount equal to $500,000 or a higher integral multiple of
$250,000.


 


(b)                                 Until
all Senior Debt has been Finally Paid, the Borrowers may not make any voluntary
prepayment with respect to the Term B Loans and the Obligations related thereto.  From and after the date all Senior Debt has
been Finally Paid, the Borrowers may from time to time prepay the Term B Loans
in whole or in part; provided that the Company shall give the
Administrative Agent (which shall promptly advise each affected Lender) notice
thereof not later than 11:00 A.M., Chicago time, on the day of such prepayment
(which shall be a Business Day), specifying the date and amount of
prepayment.  Any such partial prepayment
shall be in an amount equal to $500,000 or a higher integral multiple of
$250,000.


 


27

















 


6.2.2                        Mandatory Prepayments.


 


(a)                                  The Borrowers jointly and severally agree
to make a prepayment of the Term Loans until paid in full upon the occurrence
of any of the following (each a “Mandatory Prepayment Event”) at the
following times and in the following amounts (such applicable amounts being
referred to as “Designated Proceeds”):


 


(i)                                     Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any Asset Disposition,
in an amount equal to 100% of such Net Cash Proceeds shall be applied to Term A
Loan.


 


(ii)                                  Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any issuance
of Capital Securities of any Loan Party (excluding (x) any issuance of Capital
Securities pursuant to any employee or director option program, benefit plan or
compensation program, (y) any issuance by a Subsidiary to the Company or
another Subsidiary and (z) any issuance of Capital Securities as consideration
for a Permitted Acquisition) in an amount equal to 100% of such Net Cash
Proceeds (up to the amount required to pay the unpaid principal amount and all
accrued and unpaid interest on the Term B Loan) to the Term B Loan.


 


(iii)                               Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any issuance
of any Debt of any Loan Party (excluding Debt permitted by  clauses (a) through (i) of Section
11.1), in an amount equal to 100% of such Net Cash Proceeds shall be
applied to Term A Loan.


 


(iv)                              Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from the issuance
of the Subordinated Debt permitted by Section 11.1(g), in an amount
equal to 100% of such Net Cash Proceeds shall be applied to Term B Loan until
the Term B Loan is Finally Paid.


 


(v)                                 From
the Closing Date until (x) the Term B Loan is Finally Paid and
(y) the Company has maintained a Senior Debt to EBITDA Ratio of less than
or equal to 1.00 to 1.00 for two (2) consecutive Fiscal Quarters, within 105
days after the end of each Fiscal Year (commencing with Fiscal Year December
31, 2004), in an amount equal to 50% of Excess Cash Flow for such Fiscal Year
shall be applied to Term A Loan.


 


6.3                                 Manner
of Prepayments.


 


6.3.1                        All
Prepayments.  Each voluntary partial
prepayment shall be in a principal amount of $500,000 or a higher integral
multiple of $250,000.  Any partial
prepayment of a Group of LIBOR Loans shall be subject to the proviso to Section
2.2.3(a).  Any prepayment of a LIBOR
Loan on a day other than the last day of an Interest Period therefor shall
include interest on the principal amount being repaid and shall be subject to Section
8.4.  Except as otherwise provided
by this Agreement, all principal payments in respect of the Loans shall be
applied first, to repay outstanding
Base Rate Loans and then to repay
outstanding LIBOR Rate Loans in direct order of Interest Period
maturities.  All partial prepayments of
Term A Loan shall be applied pro rata
to reduce the payments required under Section 6.4.2 hereof.


 


6.4                                 Repayments.


 


6.4.1                        Revolving
Loans.  The Revolving Loans of each
Lender shall be paid in full and the Revolving Commitment shall terminate on
the Termination Date.


 


6.4.2                        Term A
Loans.  The Term A Loan of each
Lender shall be paid in installments equal to such Lender’s Pro Rata Share of
the aggregate principal amount of the installments of the Term A Loan as
follows:


 


28

















 




	
  Payment
  Date

  	
   

  	
  Amount

  	
   

  
	
  April 30, 2004

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  July 31, 2004

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  October 31, 2004

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  January 31, 2005

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  April 30, 2005

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  July 31, 2005

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  October 31, 2005

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  January 31, 2006

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  April 30, 2006

  	
   

  	
  $

  	
  4,500,000

  	
   

  
	
  July 31, 2006

  	
   

  	
  $

  	
  4,500,000

  	
   

  






 


Unless sooner paid
in full, the outstanding principal balance of the Term A Loan shall be paid in
full on the Term A Loan Termination Date.


 


6.4.3                        Term B
Loans.  Subject to Section 15
hereof, unless sooner paid in full, the outstanding principal balance of the
Term B Loan shall be paid in full on the Term B Loan Termination Date.


 


SECTION 7                                   MAKING
AND PRORATION OF PAYMENTS; SETOFF; TAXES.


 


7.1                                 Making
of Payments.  All payments of
principal of or interest on the Notes, and of all fees, shall be made by the
Borrowers to the Administrative Agent in immediately available funds at the
office specified by the Administrative Agent not later than noon, Chicago time,
on the date due; and funds received after that hour shall be deemed to have
been received by the Administrative Agent on the following Business Day.  The Administrative Agent shall promptly
remit to each Lender its share of all such payments received in collected funds
by the Administrative Agent for the account of such Lender.  All payments under Section 8.1 shall be made
by the Borrowers directly to the Lender entitled thereto without setoff,
counterclaim or other defense.


 


7.2                                 Application
of Certain Payments.  So long as no
Event of Default has occurred and is continuing, (a) payments matching specific
scheduled payments then due shall be applied to those scheduled payments and
(b) voluntary and mandatory prepayments shall be applied as set forth in
Sections 6.2 and 6.3.  After the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Administrative Agent or any Lender as proceeds
from the sale of, or other realization upon, all or any part of the Collateral
shall be applied as the Administrative Agent shall determine in its discretion
or, in the absence of a specific determination by the Administrative Agent, as
set forth in the Guaranty and Collateral Agreement.  Concurrently with each remittance to any Lender of its share of
any such payment, the Administrative Agent shall advise such Lender as to the
application of such payment.


 


7.3                                 Due
Date Extension.  If any payment of
principal or interest with respect to any of the Loans, or of any fees, falls
due on a day which is not a Business Day, then such due date shall be extended
to the immediately following Business Day (unless, in the case of a LIBOR Loan,
such immediately following Business Day is the first Business Day of a calendar
month, in which case such due date shall be the immediately preceding Business
Day) and, in the case of principal, additional interest shall accrue and be
payable for the period of any such extension.


 


7.4                                 Setoff.  Each Borrower agrees that the Administrative
Agent and each Lender have all rights of set-off and bankers’ lien provided by
applicable law, and in addition thereto, the each Borrower agrees that at any
time any Event of Default exists, the Administrative Agent and each Lender may
apply to the payment of any Obligations of the Borrowers hereunder, whether or
not then due, any and all balances, credits, deposits, accounts or moneys of
any Borrower then or thereafter with the Administrative Agent or such Lender.


 


29

















 


7.5                                 Proration
of Payments.  Subject to Section 15
hereof, if any Lender shall obtain any payment or other recovery (whether
voluntary, involuntary, by application of offset or otherwise, on account of
(a) principal of or interest on any Loan, but excluding (i) any payment
pursuant to Section 8.7 or 15.6 and (ii) payments of interest on any Affected
Loan) or (b) its participation in any Letter of Credit) in excess of its
applicable Pro Rata Share of payments and other recoveries obtained by all
Lenders on account of principal of and interest on the Loans (or such
participation) then held by them, then such Lender shall purchase from the
other Lenders such participations in the Loans (or sub-participations in
Letters of Credit) held by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery.


 


7.6                                 Taxes.


 


(a)                                  All
payments made by the Borrowers hereunder or under any Loan Documents shall be
made without setoff, counterclaim, or other defense.  To the extent permitted by applicable law, all payments hereunder
or under the Loan Documents (including any payment of principal, interest, or
fees) to, or for the benefit, of any Person shall be made by the Borrowers free
and clear of and without deduction or withholding for, or account of, any Taxes
now or hereinafter imposed by any taxing authority.


 


(b)                                 If
any Borrower makes any payment hereunder or under any Loan Document in respect
of which it is required by applicable law to deduct or withhold any Taxes, the
Borrowers shall increase the payment hereunder or under any such Loan Document
such that after the reduction for the amount of Taxes withheld (and any taxes
withheld or imposed with respect to the additional payments required under this
Section 7.6(b)), the amount paid to the Lenders or the Administrative
Agent equals the amount that was payable hereunder or under any such Loan
Document without regard to this Section 7.6(b).  To the extent any Borrower withholds any
Taxes on payments hereunder or under any Loan Document, the Borrowers shall
jointly and severally pay the full amount deducted to the relevant taxing
authority within the time allowed for payment under applicable law and shall
deliver to the Administrative Agent within thirty (30) days after it has made
payment to such authority a receipt issued by such authority (or other evidence
satisfactory to the Administrative Agent) evidencing the payment of all amounts
so required to be deducted or withheld from such payment.


 


(c)                                  If any Lender or the Administrative Agent
is required by law to make any payments of any Taxes on or in relation to any
amounts received or receivable hereunder or under any other Loan Document, or
any Tax is assessed against a Lender or the Administrative Agent with respect
to amounts received or receivable hereunder or under any other Loan Document,
the Borrowers will jointly and severally indemnify such person against (i) such
Tax (and any reasonable counsel fees and expenses associated with such Tax) and
(ii) any taxes imposed as a result of the receipt of the payment under this Section
7.6(c); provided that if the Borrowers reasonably believe that such
Taxes were not correctly or legally asserted and if the Borrowers paid such
Taxes to the taxing authority or reimbursed the Administrative Agent or a
Lender in the amount of such Taxes, the Administrative Agent or such Lender, as
the case may be, will use reasonable efforts to cooperate with the Borrowers to
obtain a refund of such Taxes so long as such efforts would not, in the sole
determination of the Agent or such Lender, as the case may be, result in any
additional costs, expenses or risks or be otherwise disadvantageous to it.  A certificate prepared in good faith as to
the amount of such payment by such Lender or the Administrative Agent shall,
absent manifest error, be final, conclusive, and binding on all parties.


 


(d)                                 Each of the Administrative Agent and the
Lenders agrees that if it subsequently recovers, or receives a permanent net
tax benefit with respect to, any amount of Taxes (i) previously paid by it
and as to which it has been indemnified by or on behalf of the Borrowers or
(ii) previously deducted by the Borrowers (including, without limitation, any
Taxes deducted from any additional sums payable under clause (i) of subsection
(a) above), the Administrative Agent or such Lender, as the case may be, shall
reimburse the


 


30

















 


Borrowers to the extent of the
amount of any such recovery or permanent net tax benefit (but only to the
extent of indemnity payments made, or additional amounts paid, by or on behalf
of the Borrowers under this Section 7.6 with respect to the Taxes giving
rise to such recovery or tax benefit less any Taxes paid by the Administrative
Agent or the applicable Lender with respect to such indemnity payments or such
additional amounts paid, by or on behalf of the Borrowers under this Section
7.6); provided, however, that the Borrowers, upon the request
of the Administrative Agent or such Lender, agree to repay to the
Administrative Agent or such Lender, as the case may be, the amount paid over
to the Borrowers (together with any penalties, interest or other charges), in
the event the Administrative Agent or such Lender is required to repay such
amount to the relevant taxing authority.


 


(e)                                  (i)                                     To the extent permitted by applicable law, each Lender
that is not a United States person within the meaning of Code section
7701(a)(30) (a “Non-U.S. Participant”) shall deliver to the Company and
the Administrative Agent on or prior to the Closing Date (or in the case of a
Lender that is an Assignee, on the date of such assignment to such Lender) two
accurate and complete original signed copies of IRS Form W-8BEN, W-8ECI, or
W-8IMY (or any successor or other applicable form prescribed by the IRS)
certifying to such Lender’s entitlement to a complete exemption from, or a
reduced rate in, United States withholding tax on interest payments to be made
hereunder or any Loan.  If a Lender that
is a Non-U.S. Participant is claiming a complete exemption from withholding on
interest pursuant to Sections 871(h) or 881(c) of the Code, the Lender shall
deliver (along with two accurate and complete original signed copies of IRS
Form W-8BEN) a certificate in form and substance reasonably acceptable to
Administrative Agent (any such certificate, a “Withholding Certificate”).  In addition, each Lender that is a Non-U.S.
Participant agrees that from time to time after the Closing Date, (or in the
case of a Lender that is an Assignee, after the date of the assignment to such
Lender), when a lapse in time (or change in circumstances occurs) renders the
prior certificates hereunder obsolete or inaccurate in any material respect,
such Lender shall, to the extent permitted under applicable law, deliver to the
Company and the Administrative Agent two new and accurate and complete original
signed copies of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or
other applicable forms prescribed by the IRS), and if applicable, a new
Withholding Certificate, to confirm or establish the entitlement of such Lender
or the Administrative Agent to an exemption from, or reduction in, United
States withholding tax on interest payments to be made hereunder or on any
Loan.


 


(ii)                                  Each
Lender that is not a Non-U.S. Participant (other than any such Lender which is
taxed as a corporation for U.S. federal income tax purposes) shall provide two
properly completed and duly executed copies of IRS Form W-9 (or any successor
or other applicable form) to the Company and the Administrative Agent
certifying that such Lender is exempt from United States backup withholding
tax.  To the extent that a form provided
pursuant to this Section 7.6(e)(ii) is rendered obsolete or inaccurate
in any material respects as result of change in circumstances with respect to
the status of a Lender, such Lender shall, to the extent permitted by
applicable law, deliver to the Company and the Administrative Agent revised
forms necessary to confirm or establish the entitlement to such Lender’s or
Agent’s exemption from United States backup withholding tax.


 


(iii)                               The
Borrowers shall not be required to pay additional amounts to a Lender, or
indemnify any Lender, under this Section 7.6 to the extent that such
obligations would not have arisen but for the failure of such Lender to comply
with Section 7.6(e).  Each
Non-U.S. Participant will promptly notify the Administrative Agent and the
Borrowers of any changes in circumstances that would modify or render invalid
any claimed exemption or reduction under this Section 7.6.


 


(iv)                              Each Lender agrees to indemnify the
Administrative Agent and hold the Administrative Agent harmless for the full
amount of any and all present or future Taxes and related liabilities
(including penalties, interest, additions to tax and expenses, and any Taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent
under this Section 7.6) which are imposed on or with respect to
principal, interest or fees payable to such Lender hereunder and which are not
paid by the Company pursuant to this Section 7.6, whether or not such
Taxes or related liabilities were correctly or legally asserted.  This


 


31

















 


indemnification shall be made
within thirty (30) days from the date the Administrative Agent makes written
demand therefor.


 


SECTION 8                                   INCREASED
COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS.


 


8.1                                 Increased
Costs.  (a)  If, after the date hereof, the adoption of,
or any change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency: 
(i) shall impose, modify or deem applicable any reserve (including any
reserve imposed by the FRB, but excluding any reserve included in the
determination of the LIBOR Rate pursuant to Section 4), special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by any Lender; or (ii) shall impose on any Lender any other
condition affecting its LIBOR Loans, its Note or its obligation to make LIBOR
Loans; and the result of anything described in clauses (i) and (ii) above is to
increase the cost to (or to impose a cost on) such Lender (or any LIBOR Office
of such Lender) of making or maintaining any LIBOR Loan, or to reduce the
amount of any sum received or receivable by such Lender (or its LIBOR Office)
under this Agreement or under its Note(s) with respect thereto, within three
(3) Business Days after receiving written demand from such Lender (which demand
shall be accompanied by a statement setting forth the basis for such demand and
a calculation of the amount thereof in reasonable detail, a copy of which shall
be furnished to the Administrative Agent), the Borrowers jointly and severally
agree to pay directly to such Lender such additional amount as will compensate
such Lender for such increased cost or such reduction, so long as such amounts
have accrued on or after the day which is 180 days prior to the date on which
such Lender first made demand therefor.


 


(b)                                 If any Lender shall reasonably determine
that any change in, or the adoption or phase-in of, any applicable law, rule or
regulation regarding capital adequacy, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
the compliance by any Lender or any Person controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Lender’s or such
controlling Person’s capital as a consequence of such Lender’s obligations
hereunder or under any Letter of Credit to a level below that which such Lender
or such controlling Person could have achieved but for such change, adoption,
phase-in or compliance (taking into consideration such Lender’s or such
controlling Person’s policies with respect to capital adequacy) by an amount
deemed by such Lender or such controlling Person to be material, then from time
to time, within three (3) Business Days after receiving written demand from
such Lender (which demand shall be accompanied by a statement setting forth the
basis for such demand and a calculation of the amount thereof in reasonable
detail, a copy of which shall be furnished to the Administrative Agent), the
Borrowers jointly and severally agree to pay to such Lender such additional
amount as will compensate such Lender or such controlling Person for such
reduction so long as such amounts have accrued on or after the day which is 180
days prior to the date on which such Lender first made demand therefor.


 


8.2                                 Basis
for Determining Interest Rate Inadequate or Unfair.  If (a) the Administrative Agent reasonably
determines in good faith (which determination shall be binding and conclusive
on the Borrowers) that by reason of circumstances affecting the interbank LIBOR
market adequate and reasonable means do not exist for ascertaining the
applicable LIBOR Rate for any Interest Period; or


 


(a)                                  the
Required Lenders advise the Administrative Agent in good faith that the LIBOR
Rate as determined by the Administrative Agent will not adequately and fairly
reflect the cost to such Lenders of maintaining or funding LIBOR Loans for such
Interest Period (taking into account any amount to which such Lenders may be
entitled under Section 8.1) or that the making or funding of LIBOR Loans
has become


 


32

















 


impracticable as a result of an
event occurring after the date of this Agreement which in the opinion of such
Lenders materially affects such Loans;


 


then
the Administrative Agent shall promptly notify the other parties thereof and,
so long as such circumstances shall continue, (i) no Lender shall be under any
obligation to make or convert any Base Rate Loans into LIBOR Loans and (ii) on
the last day of the current Interest Period for each LIBOR Loan, such Loan
shall, unless then repaid in full, automatically convert to a Base Rate Loan.


 


8.3                                 Changes
in Law Rendering LIBOR Loans Unlawful. 
If any change in, or the adoption of any new, law or regulation, or any
change in the interpretation of any applicable law or regulation by any
governmental or other regulatory body charged with the administration thereof,
should make it (or in the good faith judgment of any Lender cause a substantial
question as to whether it is) unlawful for any Lender to make, maintain or fund
LIBOR Loans, then such Lender shall promptly notify each of the other parties
hereto and, so long as such circumstances shall continue, (a) such Lender shall
have no obligation to make or convert any Base Rate Loan into a LIBOR Loan (but
shall make Base Rate Loans concurrently with the making of or conversion of
Base Rate Loans into LIBOR Loans by the Lenders which are not so affected, in
each case in an amount equal to the amount of LIBOR Loans which would be made
or converted into by such Lender at such time in the absence of such
circumstances) and (b) on the last day of the current Interest Period for each
LIBOR Loan of such Lender (or, in any event, 
on such earlier date as may be required by the relevant law, regulation
or interpretation), such LIBOR Loan shall, unless then repaid in full,
automatically convert to a Base Rate Loan. 
Each Base Rate Loan made by a Lender which, but for the circumstances
described in the foregoing sentence, would be a LIBOR Loan (an “Affected
Loan”) shall remain outstanding for the period corresponding to the Group
of LIBOR Loans of which such Affected Loan would be a part absent such
circumstances.


 


8.4                                 Funding
Losses.  The Borrowers hereby agree
that within three (3) Business Days after receiving written demand from any
Lender (which demand shall be accompanied by a statement setting forth the
basis for the amount being claimed, a copy of which shall be furnished to the
Administrative Agent), the Borrowers will jointly and severally indemnify such
Lender against any net loss or expense which such Lender may sustain or incur
(including any net loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund or
maintain any LIBOR Loan), as reasonably determined by such Lender, as a result
of (a) any payment, prepayment or conversion of any LIBOR Loan of such Lender
on a date other than the last day of an Interest Period for such Loan
(including any conversion pursuant to Section 8.3) or (b) any failure of
the Borrowers to borrow, convert or continue any Loan on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion/Continuation
pursuant to this Agreement.  For this
purpose, all notices to the Administrative Agent pursuant to this Agreement
shall be deemed to be irrevocable.


 


8.5                                 Right
of Lenders to Fund through Other Offices. 
Each Lender may, if it so elects, fulfill its commitment as to any LIBOR
Loan by causing a foreign branch or Affiliate of such Lender to make such Loan;
provided that in such event for the purposes of this Agreement such Loan
shall be deemed to have been made by such Lender and the joint and several
obligations of the Borrowers to repay such Loan shall nevertheless be to such
Lender and shall be deemed held by it, to the extent of such Loan, for the
account of such branch or Affiliate.


 


8.6                                 Discretion
of Lenders as to Manner of Funding. 
Notwithstanding any provision of this Agreement to the contrary, each
Lender shall be entitled to fund and maintain its funding of all or any part of
its Loans in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if
such Lender had actually funded and maintained each LIBOR Loan during each
Interest Period for such Loan through the purchase of deposits having a
maturity corresponding to such Interest Period and bearing an interest rate
equal to the LIBOR Rate for such Interest Period.


 


33

















 


8.7                                 Mitigation
of Circumstances; Replacement of Lenders. 
(a)  Each Lender shall promptly
notify the Company and the Administrative Agent of any event of which it has
knowledge which will result in, and will use reasonable commercial efforts
available to it (and not, in such Lender’s sole judgment, otherwise
disadvantageous to such Lender) to mitigate or avoid, (i) any obligation by the
Borrowers to pay any amount pursuant to Section 7.6 or 8.1 or
(ii) the occurrence of any circumstances described in Section 8.2 or 8.3
(and, if any Lender has given notice of any such event described in clause (i)
or (ii) above and thereafter such event ceases to exist, such Lender shall
promptly so notify the Company and the Administrative Agent).  Without limiting the foregoing, each Lender
will provide to the Borrowers or file any document or instrument or designate a
different funding office if such designation will avoid (or reduce the cost to
the Borrowers of) any event described in clause (i) or (ii) above and providing
or filing such document or instrument or making such designation will not, in
such Lender’s sole judgment, be otherwise disadvantageous to such Lender.


 


(b)                                 If the Borrowers become obligated to pay
additional amounts to any Lender pursuant to Section 7.6 or 8.1,
or any Lender gives notice of the occurrence of any circumstances described in Section
8.2 or 8.3, the Company may designate another bank which is acceptable
to the Administrative Agent in its reasonable discretion (such other bank being
called a “Replacement Lender”) to purchase the Loans of such Lender and
such Lender’s rights hereunder, without recourse to or warranty by, or expense
to, such Lender, for a purchase price equal to the outstanding principal amount
of the Loans payable to such Lender plus any accrued but unpaid interest on
such Loans and all accrued but unpaid fees owed to such Lender and any other
amounts payable to such Lender under this Agreement, and to assume all the
obligations of such Lender hereunder, and, upon such purchase and assumption
(pursuant to an Assignment Agreement), such Lender shall no longer be a party
hereto or have any rights hereunder (other than rights with respect to indemnities
and similar rights applicable to such Lender prior to the date of such purchase
and assumption) and shall be relieved from all obligations to the Borrowers
hereunder, and the Replacement Lender shall succeed to the rights and
obligations of such Lender hereunder.


 


8.8                                 Conclusiveness
of Statements; Survival of Provisions. 
Determinations and statements of any Lender pursuant to Section 8.1,
8.2, 8.3 or 8.4 shall be conclusive absent demonstrable
error.  Lenders may use reasonable
averaging and attribution methods in determining compensation under Sections
8.1 and 8.4, and the provisions of such Sections shall survive
repayment of the Obligations, cancellation of any Notes, expiration or
termination of the Letters of Credit and termination of this Agreement.


 


SECTION 9                                   REPRESENTATIONS
AND WARRANTIES.


 


To induce the
Administrative Agent and the Lenders to enter into this Agreement and to induce
the Lenders to make Loans and issue and participate in Letters of Credit
hereunder, each Borrower hereby jointly with the other Borrowers and severally
represents and warrants to the Administrative Agent and the Lenders that, both
before and after giving effect to the Related Transactions:


 


9.1                                 Organization.  Each Loan Party is validly existing and in
good standing under the laws of its jurisdiction of organization; and each Loan
Party is duly qualified to do business in each jurisdiction where, because of
the nature of its activities or properties, such qualification is required,
except for such jurisdictions where the failure to so qualify could not
reasonably be expected to result in a Material Adverse Effect.


 


9.2                                 Authorization;
No Conflict.  Each Loan Party is
duly authorized to execute and deliver each Loan Document to which it is a
party, each Borrower is duly authorized to borrow monies hereunder and each
Loan Party is duly authorized to perform its Obligations under each Loan
Document to which it is a party.  The
execution, delivery and performance by each Loan Party of each Loan Document to
which it is a party, and the borrowings by each Borrower hereunder, do not and
will not (a) require any consent or approval of any governmental agency or
authority (other than (i) any consent or approval which has been obtained and
is in full force and effect, (ii) filings to release Liens and to perfect
Liens, (iii) those required in the ordinary course of business,
(iv) those required in connection with the exercise of remedies and
(v) such others, the failure of which to obtain or make, could not reasonably
be expected to result in a Material Adverse Effect), (b) conflict


 


34

















 


with (i) any provision of law,
(ii) the charter, by-laws or other organizational documents of any Loan Party
or (iii) any material agreement, indenture, instrument or other document, or
any judgment, order or decree, which is binding upon any Loan Party or any of
their respective properties or (c) require, or result in, the creation or
imposition of any Lien on any asset of any Loan Party (other than Liens in
favor of the Administrative Agent created pursuant to the Collateral
Documents).


 


9.3                                 Validity
and Binding Nature.  Each of this
Agreement and each other Loan Document to which any Loan Party is a party is
the legal, valid and binding obligation of such Person, enforceable against
such Person in accordance with its terms, subject to bankruptcy, insolvency and
similar laws affecting the enforceability of creditors’ rights generally and to
general principles of equity.


 


9.4                                 Financial
Condition.  The audited consolidated
financial statements of the Company and its Subsidiaries as at December 31,
2002 and the unaudited consolidated financial statements of the Company and the
Subsidiaries as at March 31, 2003, June 30, 2003, and September 30, 2003, copies
of each of which have been delivered to each Lender, were prepared in
accordance with GAAP (subject, in the case of such unaudited statements, to the
absence of footnotes and to normal year-end adjustments) and present fairly in
all material respects the consolidated financial condition of the Company and
its Subsidiaries as at such dates and the results of their operations for the
periods then ended.


 


9.5                                 No
Material Adverse Change.  Since
December 31, 2002 (but after giving effect to the Related Transactions on a Pro
Forma Basis) there has been no material adverse change in the financial
condition, operations, assets, business, properties or prospects of the Loan
Parties taken as a whole.


 


9.6                                 Litigation;
Debt and Contingent Liabilities.  No
litigation (including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to the Knowledge of a
Senior Officer, threatened against any Loan Party which might reasonably be
expected to have a Material Adverse Effect, except as set forth in Schedule
9.6.  Other than any liability
incident to such litigation or proceedings, no Loan Party has any material
contingent liabilities not listed on Schedule 9.6 or permitted by Section
11.1.  Except as described therein, Schedule
11.1 sets forth a complete and correct list of all outstanding Debt in the
aggregate principal amount of at least $50,000 of the Loan Parties as of the
Closing Date since which date there has been no material change in the amounts,
interest rates, sinking funds, installment payments or maturities of the Debt
of the Loan Parties.  As of the date
hereof, no Loan Party is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Debt of any Loan
Party the aggregate principal amount of which exceeds $50,000 and no event or
condition exists with respect to any such Debt of a Loan Party that would
permit (or that with notice or the lapse of time, or both, would permit) one or
more Persons to cause such Debt to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.


 


9.7                                 Ownership
of Properties; Liens.  Each Loan
Party owns good and, in the case of real property, marketable title to all of
its material properties and assets which it owns or purports to own, real and
personal, tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, charges and claims (including infringement claims with respect to
patents, trademarks, service marks, copyrights and the like) except as
permitted by Section 11.2.


 


9.8                                 Equity
Ownership; Subsidiaries. 
(a) All issued and outstanding Capital Securities of each Loan
Party are duly authorized and validly issued, fully paid, non-assessable, and
free and clear of all Liens other than those in favor of the Administrative
Agent and Permitted Liens, and such securities were issued in compliance with
all applicable state and federal laws concerning the issuance of
securities.  Schedule 9.8 sets
forth the authorized Capital Securities of each Loan Party as of the Closing
Date.  All of the issued and outstanding
Capital Securities of the Company are owned as set forth on Schedule 9.8
as of the Closing Date, and all of the issued and outstanding Capital
Securities of each Wholly-Owned Subsidiary is, directly or indirectly, owned by
the Company.  As of the Closing Date,
except as set forth on Schedule 9.8, there are no


 


35

















 


pre-emptive or other
outstanding rights, options, warrants, conversion rights or other similar
agreements or understandings for the purchase or acquisition of any Capital
Securities of any Loan Party.


 


(b)                                 Immediately
after giving effect to the Related Transactions, (i) the Company shall own
100% of the issued and outstanding Capital Securities of P-D and (ii) P-D
shall own 100% of the issued and outstanding Capital Securities of Poorman.


 


9.9                                 Pension
Plans.  (a) The Unfunded
Liability of all Pension Plans does not in the aggregate exceed twenty percent
of the Total Plan Liability for all such Pension Plans.  Each Pension Plan complies in all material
respects with all applicable requirements of law and regulations.  No contribution failure under Section 412 of
the Code, Section 302 of ERISA or the terms of any Pension Plan has occurred
with respect to any Pension Plan, sufficient to give rise to a Lien under
Section 302(f) of ERISA, or otherwise to have a Material Adverse Effect.  There are no pending or, to the knowledge of
Company, threatened, claims, actions, investigations or lawsuits against any
Pension Plan, any fiduciary of any Pension Plan, or the Company or other any
member of the Controlled Group with respect to a Pension Plan or a Multiemployer
Pension Plan which could reasonably be expected to have a Material Adverse
Effect.  Neither the Company nor any
other member of the Controlled Group has engaged in any prohibited transaction
(as defined in Section 4975 of the Code or Section 406 of ERISA) in connection
with any Pension Plan or Multiemployer Pension Plan which would subject that
Person to any material liability. 
Within the past five years, neither the Company nor any other member of
the Controlled Group has engaged in a transaction which resulted in a Pension
Plan with an Unfunded Liability being transferred out of the Controlled Group,
which could reasonably be expected to have a Material Adverse Effect.  No Termination Event has occurred or is
reasonably expected to occur with respect to any Pension Plan, which could
reasonably be expected to have a Material Adverse Effect.


 


(b)                                 All
contributions (if any) have been made to any Multiemployer Pension Plan that
are required to be made by the Company or any other member of the Controlled
Group under the terms of the plan or of any collective bargaining agreement or
by applicable law; neither the Company nor any other member of the Controlled
Group has withdrawn or partially withdrawn from any Multiemployer Pension Plan,
incurred any withdrawal liability with respect to any such plan or received
notice of any claim or demand for withdrawal liability or partial withdrawal
liability from any such plan, and no condition has occurred which, if
continued, could result in a withdrawal or partial withdrawal from any such
plan; and neither the Company nor any other member of the Controlled Group has
received any notice that any Multiemployer Pension Plan is in reorganization,
that increased contributions may be required to avoid a reduction in plan
benefits or the imposition of any excise tax, that any such plan is or has been
funded at a rate less than that required under Section 412 of the Code, that
any such plan is or may be terminated, or that any such plan is or may become
insolvent.


 


9.10                           Investment
Company Act.  No Loan Party is an
“investment company” or a company “controlled” by an “investment company” or a
“subsidiary” of an “investment company,” within the meaning of the Investment
Company Act of 1940.


 


9.11                           Public
Utility Holding Company Act.  No
Loan Party 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.


 


9.12                           Regulation
U.  The Company is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.


 


9.13                           Taxes;
Tax Shelter Registration.


 


(a)                                  Each
Loan Party has timely filed all tax returns and reports required by law to have
been filed by it and has paid all taxes and governmental charges due and
payable with respect to such return, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for


 


36

















 


which adequate reserves in
accordance with GAAP shall have been set aside on its books.  The Loan Parties have made adequate reserves
on their books and records in accordance with GAAP for all taxes that have
accrued but which are not yet due and payable. 
To the Knowledge of a Senior Officer of the Company, no Loan Party has
participated in any transaction that relates to a year of the taxpayer (which
is still open under the applicable statute of limitations) which is a
“reportable transaction” within the meaning of Treasury Regulation Section
1.6011-4(b)(2) (irrespective of the date when the transaction was entered
into).


 


(b)                                 No
Loan Party intends to treat any of the transactions contemplated by any Loan
Document as being a “reportable transaction” within the meaning of Treasury
Regulation Section 1.6011-4.


 


9.14                           Solvency,
etc.  On the Closing Date, and
immediately prior to and after giving effect to the issuance of each Letter of
Credit and each borrowing hereunder and the use of the proceeds thereof, with
respect to the Loan Parties taken as a whole, (a) the fair value of its assets
on a going concern basis is greater than the amount of its liabilities (including
disputed, contingent and unliquidated liabilities) as such value is established
and liabilities evaluated, (b) the present fair saleable value of its
assets on a going concern basis is not less than the amount that will be
required to pay the probable liability on its debts as they become absolute and
matured, (c) it is able to realize upon its assets and generally pay its debts
and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business, (d) it does not
intend to, and does not believe that it will, incur debts or liabilities beyond
its ability to generally pay as such debts and liabilities mature and (e) it is
not engaged in business or a transaction, and is not about to engage in business
or a transaction, for which its property would constitute unreasonably small
capital.


 


9.15                           Environmental
Matters.  Except as disclosed on Schedule
9.15 hereto, the on-going operations of each Loan Party comply in all
respects with all Environmental Laws, except such non-compliance which could
not (if enforced in accordance with applicable law) reasonably be expected to
result, either individually or in the aggregate, in a Material Adverse
Effect.  Each Loan Party has obtained,
and maintained in good standing, all licenses, permits, authorizations,
registrations and other approvals required under any Environmental Law and
required for their respective ordinary course operations, and for their
reasonably anticipated future operations, and each Loan Party is in compliance
with all terms and conditions thereof, except where the failure to do so could
not reasonably be expected to result, either individually or in the aggregate,
in a Material Adverse Effect.  No Loan
Party or any of its properties or operations is subject to, or reasonably
anticipates the issuance of, any written order from or agreement with any
Federal, state or local governmental authority, nor subject to any judicial or
docketed administrative or other proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Substance the subject matter of which could
reasonably be expected to result in a Material Adverse Effect.  There are no Hazardous Substances or other
conditions or circumstances existing with respect to any property, arising from
operations prior to the Closing Date, or relating to any waste disposal, of any
Loan Party that could reasonably be expected to result, either individually or
in the aggregate, in a Material Adverse Effect.  No Loan Party has any underground storage tanks that are not
properly registered or permitted under applicable Environmental Laws or that at
any time have released, leaked, disposed of or otherwise discharged Hazardous
Substances except, in either case, as could not reasonably be expected to
result in a Material Adverse Effect.


 


9.16                           Insurance.  Set forth on Schedule 9.16 is a
complete and accurate summary of the property and casualty insurance program of
the Loan Parties as of the Closing Date (including the names of all insurers,
policy numbers, expiration dates, amounts and types of coverage, annual
premiums, exclusions, deductibles, self-insured retention, and a description in
reasonable detail of any self-insurance program, retrospective rating plan,
fronting arrangement or other risk assumption arrangement involving any Loan
Party).  Each Loan Party and its
properties are insured with financially sound and reputable insurance companies
which are not Affiliates of the Loan Parties, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies of
a similar size engaged in similar businesses and owning similar properties in
localities where such Loan Parties operate.


 


37

















 


9.17                           Real
Property.  Set forth on Schedule
9.17 is a complete and accurate list, as of the Closing Date, of the
address of all real property owned or leased by any Loan Party, together with,
in the case of leased property, the name and mailing address of the lessor of
such property.


 


9.18                           Information.  All information heretofore or
contemporaneously herewith furnished in writing by any Loan Party to the
Administrative Agent or any Lender for purposes of or in connection with this
Agreement and the transactions contemplated hereby is, and all written
information hereafter furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender pursuant hereto or in connection herewith
will be, true and accurate in every material respect on the date as of which
such information is dated or certified, and none of such information is or will
be incomplete by omitting to state any material fact necessary to make such
information not misleading in light of the circumstances under which made (it
being recognized by the Administrative Agent and the Lenders that any
projections and forecasts provided by the Company are based on good faith
estimates and assumptions believed by the Company to be reasonable when made
and that actual results during the period or periods covered by any such
projections and forecasts may differ from projected or forecasted results).


 


9.19                           Intellectual
Property.  Each Loan Party owns and
possesses or has a license or other right to use all patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service marks,
service mark rights, copyrights, trade secrets and other intellectual property
rights as are necessary for the conduct of the businesses of the Loan Parties,
without any infringement upon rights of others which could reasonably be
expected to have a Material Adverse Effect. 
A true, correct and complete list of all patents, patent applications,
and registrations of, or applications for registration of, trademarks,
trademark rights, trade names, trade name rights, service marks, service mark
rights and copyrights as are necessary for the conduct of the businesses of the
Loan Parties is set forth on Schedule 9.19 hereto.


 


9.20                           Burdensome
Obligations.  No Loan Party is a
party to any agreement or contract or subject to any restriction contained in
its organizational documents which could reasonably be expected to have a
Material Adverse Effect.


 


9.21                           Labor
Matters.  Except as set forth on Schedule
9.21, no Loan Party is subject to any labor or collective bargaining
agreement.  There are no existing or
threatened strikes, lockouts or other labor disputes involving any Loan Party
that singly or in the aggregate could reasonably be expected to have a Material
Adverse Effect.  Hours worked by and
payment made to employees of the Loan Parties are not in violation of the Fair
Labor Standards Act or any other applicable law, rule or regulation dealing
with such matters.


 


9.22                           No
Default.  No Event of Default or
Unmatured Event of Default exists or would result from the incurrence by any
Loan Party of any Debt hereunder or under any other Loan Document.


 


9.23                           Related
Agreements, Related Transaction, etc. 
(a)  The Company has heretofore
furnished the Administrative Agent a true and correct copy of the Related
Agreements and there have been no amendments to such Related Agreements from
the copies so provided.


 


(b)                                 Each
Loan Party and, to the Knowledge of a Senior Officer of the Company, each other
party to the Related Agreements, has duly taken all necessary corporate,
partnership or other organizational action to authorize the execution, delivery
and performance of the Related Agreements and the consummation of transactions
contemplated thereby.


 


(c)                                  The
Related Transactions will comply with all applicable legal requirements, and
all necessary governmental, regulatory, creditor, shareholder, partner and
other material consents, approvals and exemptions required to be obtained by
the Loan Parties and, to the Knowledge of a Senior Officer of the Company, each
other party to the Related Agreements in connection with the Related
Transactions will be, prior to consummation of the Related Transactions, duly
obtained and will be in full force and effect. 
As of the date of the Related Agreements, all applicable waiting periods
with respect to the Related Transactions will


 


38

















 


have expired without any action
being taken by any competent governmental authority which restrains, prevents
or imposes material adverse conditions upon the consummation of the Related
Transactions unless otherwise consented to by the Administrative Agent.


 


(d)                                 The
execution and delivery of the Related Agreements did not, and the consummation
of the Related Transactions will not, violate any statute or regulation of the
United States (including any securities law) or of any state or other
applicable jurisdiction, or any order, judgment or decree of any court or
governmental body binding on any Loan Party or, to the Knowledge of a Senior
Officer of the Company, any other party to the Related Agreements, or result in
a breach of, or constitute a default under, any material agreement, indenture,
instrument or other document, or any judgment, order or decree, to which any
Loan Party is a party or by which any Loan Party is bound or, to the Knowledge
of a Senior Officer of the Company, to which any other party to the Related
Agreements is a party or by which any such party is bound.


 


(e)                                  No
statement or representation made in the Related Agreements by any Loan Party
or, to the Knowledge of any Senior Officer of the Company, any other Person,
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary in order to make the statements
made therein, in light of the circumstances under which they are made, not
misleading in any material respect.


 


(f)                                    No
material condition to the consummation of the Related Transaction has been
waived (without the prior consent of the Administrative Agent).


 


(g)                                 Immediately
after giving effect to the Related Transaction, all Debt to be Repaid will be
paid in full, and all agreements and instruments governing the Debt to be
Repaid and all Liens securing such Debt to be Repaid will be terminated or
released pursuant to a payoff letter.


 


9.24                           Subordinated
Debt.  The subordination provisions
set forth in Section 15 hereof, with respect to the Term B Loan, are
enforceable against the holders of the Subordinated Debt by the Administrative
Agent and the Lenders.  All Obligations
with respect to Revolving Loans and Term A Loans constitute Senior Debt
entitled to the benefits of such subordination provisions.  Each Borrower acknowledges that the
Administrative Agent and each Lender is entering into this Agreement and are
extending the Commitments and making the Revolving Loans and Term A Loans in
reliance upon the such subordination provisions and this Section 9.24.


 


9.25                           Major
Contracts.  There is no default by
any Loan Party party to any Major Contract thereto or, to the Knowledge of the
Senior Officers of the Company, any other party party thereto in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in such Major Contract which could reasonably be expected
to result, either individually or in the aggregate, in a Material Adverse
Effect. 


 


SECTION 10                             AFFIRMATIVE
COVENANTS.


 


Until the
expiration or termination of the Commitments and thereafter until all
Obligations hereunder and under the other Loan Documents are Finally Paid and
all Letters of Credit have been terminated, the Company agrees that, unless at
any time the Required Lenders shall otherwise expressly consent in writing, it
will:


 


10.1                           Reports,
Certificates and Other Information. 
Furnish to the Administrative Agent and each Lender:


 


10.1.1                  Annual Report.  Promptly when available and in any event
within ninety (90) days after the close of each Fiscal Year: (a) a copy of the
annual audit report of the Company and its Subsidiaries for such Fiscal Year,
including therein consolidated balance sheets and statements of income, changes
in stockholders’ equity and cash flows of the Company and its Subsidiaries as
at the end of such Fiscal Year, certified without


 


39

















 


adverse reference to going
concern value and without qualification by independent auditors of recognized
standing selected by the Company and reasonably acceptable to the
Administrative Agent, together with (i) if requested by the Administrative
Agent in writing at least thirty (30) days prior to the date the audited
financials are required to be delivered pursuant to this Section 10.1.1,
a written statement from such accountants to the effect that in making the
examination necessary for the signing of such annual audit report by such
accountants, nothing came to their attention that caused them to believe that
the Company was not in compliance with any provision of Section 11.1, 11.3
or 11.13 of this Agreement insofar as such provision relates to
accounting matters or, if something has come to their attention that caused
them to believe that the Company was not in compliance with any such provision,
describing such non-compliance in reasonable detail and (ii) a comparison with
the previous Fiscal Year; and (b) separate balance sheets for each Loan Party
as of the end of such Fiscal Year and statements of income, changes in
stockholders’ equity and cash flows for each Subsidiary of the Company for such
Fiscal Year, certified by a Senior Officer of the Company.


 


10.1.2                  Quarterly
Reports.  Promptly when available
and in any event within forty-five (45) days after the end of each Fiscal
Quarter (except the last Fiscal Quarter of each Fiscal Year),
(a) consolidated balance sheets of the Company and its Subsidiaries as of
the end of such Fiscal Quarter, together with consolidated statements of
income, changes in stockholders’ equity and cash flows for such Fiscal Quarter
and for the period beginning with the first day of such Fiscal Year and ending
on the last day of such Fiscal Quarter, together with a comparison with the
corresponding period of the previous Fiscal Year, certified by a Senior Officer
of the Company; and (b) separate balance sheets of each Loan Party as of the
end of such Fiscal Quarter, together with statements of income, changes in stockholders’
equity and cash flows for such Fiscal Quarter and for the period beginning with
the first day of such Fiscal Year and ending on the last day of such Fiscal
Quarter, together with a comparison with the corresponding period of the
previous Fiscal Year, certified by a Senior Officer of the Company.


 


10.1.3                  Compliance
Certificates.  Contemporaneously
with the furnishing of a copy of each annual audit report pursuant to Section
10.1.1 and each set of statements pursuant to Section 10.1.2, a duly
completed compliance certificate in the form of Exhibit B, with
appropriate insertions, dated the date of such annual report or such quarterly
statements and signed by a Senior Officer of the Company, containing (i) a
computation of each of the financial ratios and restrictions set forth in Section
11.13 and to the effect that such officer has not become aware of any Event
of Default or Unmatured Event of Default that has occurred and is continuing
or, if there is any such event, describing it and the steps, if any, being
taken to cure it and (ii) a written statement of the Company’s management
setting forth a discussion of the Company’s financial condition, changes in
financial condition and results of operations.


 


10.1.4                  Reports to
the SEC and to Shareholders.  Promptly
upon the filing or sending thereof, copies of all regular, periodic or special
reports of any Loan Party filed with the SEC; copies of all registration
statements of any Loan Party filed with the SEC (other than on Form S-8); and
copies of all proxy statements or other communications made to security holders
generally.


 


10.1.5                  Notice of
Default, Litigation and ERISA Matters. 
Promptly upon a Senior Officer of a Loan Party obtaining Knowledge
becoming aware of any of the following, written notice describing the same and
the steps being taken by the Company or the Subsidiary affected thereby with
respect thereto:


 


(a)                                  the
occurrence of an Event of Default or an Unmatured Event of Default;


 


(b)                                 any
litigation, arbitration or governmental investigation or proceeding not
previously disclosed by the Company to the Lenders which has been instituted
or, to the Knowledge of a Senior Officer of the Company, is threatened against
any Loan Party or to which any of the properties of any thereof is subject
which could reasonably be expected to have a Material Adverse Effect;


 


(c)                                  the
institution of any steps by any member of the Controlled Group or any other
Person to terminate any Pension Plan, or the failure of any member of the
Controlled Group to make a


 


40

















 


required
contribution to any Pension Plan (if such failure is sufficient to give rise to
a Lien under Section 302(f) of ERISA) or to any Multiemployer Pension Plan, or
the taking of any action with respect to a Pension Plan which could result in
the requirement that the Company furnish a bond or other security to the PBGC
or such Pension Plan, or the occurrence of any event with respect to any
Pension Plan or Multiemployer Pension Plan which could result in the incurrence
by any member of the Controlled Group of any material liability, fine or
penalty (including any claim or demand for withdrawal liability or partial
withdrawal from any Multiemployer Pension Plan), or any material increase in
the contingent liability of the Company with respect to any post-retirement
welfare benefit plan or other employee benefit plan of the Company or another
member of the Controlled Group, or any notice that any Multiemployer Pension
Plan is in reorganization, that increased contributions may be required to
avoid a reduction in plan benefits or the imposition of an excise tax, that any
such plan is or has been funded at a rate less than that required under Section
412 of the Code, that any such plan is or may be terminated, or that any such
plan is or may become insolvent;


 


(d)                                 any
cancellation or material change in any insurance maintained by any Loan Party;
or


 


(e)                                  any
other event (including (i) any violation of any Environmental Law or the
assertion of any Environmental Claim or (ii) the enactment or effectiveness of
any law, rule or regulation) which might reasonably be expected to have a
Material Adverse Effect.


 


10.1.6                  Management
Reports.  Promptly upon receipt
thereof, copies of all detailed financial and management reports submitted to
the Company by independent auditors in connection with each annual or interim
audit made by such auditors of the books of the Company.


 


10.1.7                  Projections.  As soon as practicable, and in any event not
later than thirty (30) days prior to the commencement of each Fiscal Year,
financial projections for the Company and its Subsidiaries for such Fiscal Year
(including quarterly operating and cash flow budgets) prepared in a manner
consistent with the projections delivered by the Company to the Lenders prior
to the Closing Date or otherwise in a manner reasonably satisfactory to the
Administrative Agent, accompanied by a certificate of a Senior Officer of the
Company on behalf of the Company to the effect that (a) such projections were
prepared by the Company in good faith, (b) the Company had a reasonable
basis for the assumptions contained in such projections when such projections
were made and (c) such projections have been prepared in accordance with such
assumptions.


 


10.1.8                  Subordinated
Debt and Related Transaction Notices. 
Promptly following receipt, copies of any material notices (including
notices of default or acceleration) received from any holder or trustee of,
under or with respect to any Subordinated Debt or in connection with the Related
Transactions.


 


10.1.9                  Other
Information.  Promptly from time to
time, such other information concerning the Loan Parties as any Lender or the
Administrative Agent may reasonably request.


 


10.2                           Books,
Records and Inspections.  Keep, and
cause each other Loan Party to keep, its books and records in accordance with
sound business practices sufficient to allow the preparation of financial
statements in accordance with GAAP; permit, and cause each other Loan Party to
permit, any Lender or the Administrative Agent or any representative thereof to
inspect the properties and operations of the Loan Parties; and permit, and
cause each other Loan Party to permit, at any reasonable time and with
reasonable notice (or at any time without notice if an Event of Default exists),
any Lender or the Administrative Agent or any representative thereof to visit
any or all of its offices, to discuss its financial matters with its officers
and its independent auditors (and the Company hereby authorizes such
independent auditors to discuss such financial matters with any Lender or the
Administrative Agent or any representative thereof, provided that the Company
is given an opportunity to be present at such discussion), and to examine (and,
at the expense of the Loan Parties, photocopy extracts from) any of its books
or other records; and permit, and cause each other Loan Party to permit, the
Administrative Agent and its representatives to inspect the Inventory and other
tangible


 


41

















 


assets of the Loan Parties, to
perform appraisals of the equipment of the Loan Parties, and to inspect, audit,
check and make copies of and extracts from the books, records, computer data,
computer programs, journals, orders, receipts, correspondence and other data
relating to Inventory, Accounts and any other collateral.  All such inspections or audits by the
Administrative Agent shall be at the Company’s expense, provided that so long
as no Event of Default or Unmatured Event of Default exists, the Company shall
not be required to reimburse the Administrative Agent for inspections or audits
more frequently than once each Fiscal Year.


 


10.3                           Maintenance
of Property; Insurance.  (a)  Keep, and cause each other Loan Party to
keep, all property necessary in the business of the Company or such other Loan
Party in good working order and condition, ordinary wear and tear, casualty and
condemnation excepted.


 


(b)                                 Maintain,
and cause each other Loan Party to maintain, with responsible insurance
companies, such insurance coverage as may be required by any law or
governmental regulation or court decree or order applicable to it and such
other insurance, to such extent and against such hazards and liabilities, as is
customarily maintained by companies similarly situated, but which shall insure
against all risks and liabilities of the type identified on Schedule 9.16
and shall have insured amounts not materially less than, and deductibles not
materially higher than, those set forth on such schedule; and, upon request of
the Administrative Agent or any Lender, furnish to the Administrative Agent or
such Lender a certificate setting forth in reasonable detail the nature and
extent of all insurance maintained by the Loan Parties.  The Company shall cause each issuer of an
insurance policy to provide the Administrative Agent with an endorsement (i)
showing the Administrative Agent as loss payee with respect to each policy of
property or casualty insurance and naming the Administrative Agent and each
Lender as an additional insured with respect to each policy of liability
insurance, (ii) providing that thirty (30) days’ (or ten (10) days’ in the case
of non-payment of premiums) notice will be given to the Administrative Agent
prior to any cancellation of, material reduction or change in coverage provided
by or other material modification to such policy and (iii) reasonably
acceptable in all other respects to the Administrative Agent.  The Company shall execute and deliver to the
Administrative Agent a collateral assignment, in form and substance
satisfactory to the Administrative Agent, of each business interruption
insurance policy maintained by the Company.


 


(c)                                  UNLESS THE COMPANY PROVIDES THE
ADMINISTRATIVE AGENT WITH EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS
AGREEMENT, THE ADMINISTRATIVE AGENT MAY PURCHASE INSURANCE AT THE COMPANY’S
EXPENSE TO PROTECT THE ADMINISTRATIVE AGENT’S AND THE LENDERS’ INTERESTS IN THE
COLLATERAL.  THIS INSURANCE MAY, BUT
NEED NOT, PROTECT ANY LOAN PARTY’S INTERESTS. 
THE COVERAGE THAT THE ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY ANY
CLAIM THAT IS MADE AGAINST ANY LOAN PARTY IN CONNECTION WITH THE
COLLATERAL.  THE COMPANY MAY LATER
CANCEL ANY INSURANCE PURCHASED BY THE ADMINISTRATIVE AGENT, BUT ONLY AFTER
PROVIDING THE ADMINISTRATIVE AGENT WITH EVIDENCE THAT THE COMPANY HAS OBTAINED
INSURANCE AS REQUIRED BY THIS AGREEMENT. 
IF THE ADMINISTRATIVE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE
COMPANY WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER
CHARGES THAT MAY BE IMPOSED WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE.  THE COSTS OF THE INSURANCE MAY BE ADDED TO
THE PRINCIPAL AMOUNT OF THE LOANS OWING HEREUNDER.  THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF THE
INSURANCE THE LOAN PARTIES MAY BE ABLE TO OBTAIN ON THEIR OWN.


 


10.4                           Compliance
with Laws; Payment of Taxes and Liabilities.  (a)                  Comply, and cause each other Loan Party to
comply, in all material respects with all applicable laws, rules, regulations,
decrees, orders, judgments, licenses and permits, except where failure to
comply could not reasonably be expected to have a Material Adverse Effect; (b)
without limiting clause (a) above, ensure, and cause each other Loan Party to
ensure, that no person who owns a controlling interest in or otherwise controls
a Loan Party is or shall be


 


42

















 


(i) listed on the Specially
Designated Nationals and Blocked Person List maintained by the Office of
Foreign Assets Control (“OFAC”), Department of the Treasury, and/or any
other similar lists maintained by OFAC pursuant to any authorizing statute,
Executive Order or regulation or (ii) a person designated under Section 1(b),
(c) or (d) of Executive Order No. 13224 (September 23, 2001), any related
enabling legislation or any other similar Executive Orders, (c) without
limiting clause (a) above, comply, and cause each other Loan Party to
comply, with all applicable Bank Secrecy Act (“BSA”) and anti-money laundering
laws and regulations and (d) pay, and cause each other Loan Party to pay, prior
to delinquency, all material taxes and other governmental charges against it or
any collateral, as well as claims of any kind which, if unpaid, could become a
Lien on any of its property; provided that the foregoing shall not
require any Loan Party to pay any such tax or charge so long as it shall
contest the validity thereof in good faith by appropriate proceedings and shall
set aside on its books adequate reserves with respect thereto in accordance
with GAAP and, in the case of a claim which could become a Lien on any
collateral, such contest proceedings shall stay the foreclosure of such Lien or
the sale of any portion of the collateral to satisfy such claim.


 


10.5                           Maintenance
of Existence, etc.  Maintain and
preserve, and (subject to Section 11.4) cause each other Loan Party
to maintain and preserve, (a) its existence and good standing in the
jurisdiction of its organization and (b) its qualification to do business and
good standing in each jurisdiction where the nature of its business makes such
qualification necessary (other than such jurisdictions in which the failure to
be qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect).


 


10.6                           Use
of Proceeds.  Use the proceeds of
the Loans, and the Letters of Credit, solely to finance the Related
Transactions, for working capital purposes, for Capital Expenditures and for
other general business purposes; and not use or permit any proceeds of any Loan
to be used, either directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of “purchasing or carrying” any Margin Stock.


 


10.7                           Employee
Benefit Plans.


 


(a)                                  Maintain,
and cause each other member of the Controlled Group to maintain, each Pension
Plan in substantial compliance with all applicable requirements of law and
regulations.


 


(b)                                 Make,
and cause each other member of the Controlled Group to make, on a timely basis,
all required contributions to any Multiemployer Pension Plan.


 


(c)                                  Not,
and not permit any other member of the Controlled Group to (i) seek a waiver of
the minimum funding standards of ERISA, (ii) terminate or withdraw from any
Pension Plan or Multiemployer Pension Plan or (iii) take any other action with
respect to any Pension Plan that would reasonably be expected to entitle the
PBGC to terminate, impose liability in respect of, or cause a trustee to be
appointed to administer, any Pension Plan, unless the actions or events described
in clauses (a), (b) and (c) individually or in the aggregate would not have a
Material Adverse Effect.


 


10.8                           Environmental
Matters.  If any release or
threatened release or other disposal of Hazardous Substances shall occur or
shall have occurred on any real property or any other assets of any Loan Party,
the Company shall, or shall cause the applicable Loan Party to, cause the
prompt containment and removal of such Hazardous Substances and the remediation
of such real property or other assets as necessary to comply with all
Environmental Laws, where the failure to do so could reasonably be expected to
result in a Material Adverse Effect. 
Without limiting the generality of the foregoing, the Company shall, and
shall cause each other Loan Party to, comply with any Federal or state judicial
or administrative order requiring the performance at any real property of any
Loan Party of activities in response to the release or threatened release of a
Hazardous Substance, where the failure to do so could reasonably be expected to
result in a Material Adverse Effect.


 


10.9                           Tax
Shelter Registration.  Notify the
Administrative Agent of any action (or the intention to take an action)
inconsistent with the representation in Section 9.13(b).  If the Company so notifies the
Administrative Agent, the Company acknowledges and agrees that the
Administrative Agent and the Lenders


 


43

















 


may treat the transactions
contemplated hereby (or any single transaction contemplated hereby) as part of
a transaction that is subject to Treasury Regulation Section 301.6112-1, and
the Administrative Agent and such Lender, as applicable, may maintain the lists
and other regulations required by such Treasury Regulation.  To the extent the Administrative Agent or a
Lender determines to maintain such list, each Loan Party shall cooperate with
the Administrative Agent and Lenders in obtaining the information required
under such Treasury Regulation.  Within
10 days after notifying the Administrative Agent under this Section 10.9,
the Company shall deliver to the Administrative Agent a duly completed copy of
IRS Form 8886 or any successor form.


 


10.10                     Further
Assurances.  (a)  Take, and cause each other Loan Party to
take, such actions as are necessary or as the Administrative Agent or the
Required Lenders may reasonably request from time to time to ensure that the
Obligations of each Loan Party under the Loan Documents are secured by
substantially all of the assets of the Company and each domestic Subsidiary (as
well as all Capital Securities of each domestic Subsidiary and 65% of all
Capital Securities of each direct foreign Subsidiary) and guaranteed by each
domestic Subsidiary (including, upon the acquisition or creation thereof, any
Subsidiary acquired or created after the Closing Date), in each case as the
Administrative Agent may determine, including, without limitation, (i) the
execution and delivery of guaranties, security agreements, pledge agreements,
mortgages, deeds of trust, financing statements and other documents, and the
filing or recording of any of the foregoing and opinions related thereto, (ii)
the delivery of certificated securities and other collateral with respect to
which perfection is obtained by possession and (iii) cause to be delivered
to the Administrative Agent a current environmental site assessment report
prepared in accordance with the Administrative Agent’s standard requirements
for environmental assessments of real property.


 


(b)                                 With
respect to each parcel of real property owned by any Loan Party, within sixty
(60) days of the Closing Date, cause a duly executed Mortgage providing for a
fully perfected Lien, in favor of the Administrative Agent, in all right, title
and interest of the Company or such Subsidiary in such real property, together
with:


 


(i)                                 an
ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the
Administrative Agent, insuring the Administrative Agent’s Lien on such real
property and containing such endorsements as the Administrative Agent may reasonably
require (it being understood that the amount of coverage, exceptions to
coverage and status of title set forth in such policy shall be acceptable to
the Administrative Agent);


 


(ii)                              copies
of all documents of record concerning such real property as shown on the
commitment for the ALTA Loan Title Insurance Policy referred to above;


 


(iii)                           original
or certified copies of all insurance policies required to be maintained with
respect to such real property by this Agreement, the applicable Mortgage or any
other Loan Document;


 


(iv)                          a
survey certified to the Administrative Agent meeting such standards as the
Administrative Agent may reasonably establish and otherwise reasonably
satisfactory to the Administrative Agent;


 


(v)                             a
flood insurance policy concerning such real property, if required by the Flood
Disaster Protection Act of 1973; and


 


(vi)                          an
appraisal, prepared by an independent appraiser engaged directly by the
Administrative Agent, of such parcel of real property or interest in real
property, which appraisal shall satisfy the requirements of the Financial
Institutions Reform, Recovery and Enforcement Act, if applicable, and shall
evidence compliance with the supervisory loan-to-value limits set forth in the
Federal Deposit Insurance Corporation Improvement Act of 1991, if applicable.


 


44

















 


Additionally,
within such time period, (A) in the case of any material leased real
property, the Borrowers will use their commercially reasonable efforts to
provide a Collateral Access Agreement from the landlord of such property
waiving or subordinating any landlord’s Lien in respect of personal property
kept at the premises subject to such lease and (B) in the case of any material
mortgaged real property, the Borrowers will use their commercially reasonable
efforts to provide a waiver from the mortgagee thereof waiving any Lien in
respect of personal property kept at the premises subject to such Mortgage.


 


10.11                     Deposit
Accounts.  Within ninety (90) days
of the Closing Date, unless the Administrative Agent otherwise consents in
writing, in order to facilitate the Administrative Agent’s and the Lenders’
maintenance and monitoring of their security interests in the collateral,
maintain all of their principal operating deposit accounts and investment
accounts with the Administrative Agent.


 


SECTION 11                             NEGATIVE
COVENANTS.


 


Until the
expiration or termination of the Commitments and thereafter until all
Obligations hereunder and under the other Loan Documents are Finally Paid and
all Letters of Credit have been terminated, the Company agrees that, unless at
any time the Required Lenders shall otherwise expressly consent in writing, it
will:


 


11.1                           Debt.  Not, and not permit any other Loan Party to,
create, incur, assume or suffer to exist any Debt, except:


 


(a)                                  Obligations
under this Agreement and the other Loan Documents;


 


(b)                                 Debt
secured by Liens permitted by Section 11.2(d), and extensions, renewals
and refinancings thereof; provided that the aggregate amount of all such
Debt at any time outstanding shall not exceed $3,000,000;


 


(c)                                  Debt
of any Borrower to any other Borrower; provided that if such Debt is
evidenced by a note, such note shall be pledged and delivered to the
Administrative Agent pursuant to the Collateral Documents as additional
collateral security for the Obligations, and the obligations under any demand
note shall be subordinated to the Obligations of the applicable Borrower
hereunder in a manner reasonably satisfactory to the Administrative Agent;


 


(d)                                 Hedging
Obligations approved by Administrative Agent and incurred in favor of a Lender
or an Affiliate thereof for bona fide hedging purposes and not for speculation;


 


(e)                                  Debt
described on Schedule 11.1 and any extension, renewal or refinancing
thereof so long as the principal amount thereof is not increased;


 


(f)                                    the
Debt to be Repaid (so long as such Debt is repaid on the Closing Date with the
proceeds of the initial Loans hereunder);


 


(g)                                 Subordinated
Debt of the Company incurred to refinance the Term B Loans on terms and
conditions in form and substance reasonably satisfactory to the Administrative
Agent and the Required Lenders, in an amount not to exceed the remainder of
(x) $75,000,000 less (y) the amount of Subordinated Debt
outstanding under clause (m) below, or, if less, such amount such that
immediately after giving effect to the issuance and the application of proceeds
thereof, the Total Debt to EBITDA Ratio is less than or equal to 3.00 to 1.00; provided,
that (i) immediately before and after giving effect to the issuance of
such Subordinated Debt (A) no Unmatured Event of Default or Event of
Default has occurred and is continuing and (B) the Revolving Loan
Availability is equal to or more than $5,000,000 and (ii) the proceeds of
such Subordinated Debt are actually used to Finally Pay the Term B Loans and
the remaining proceeds, if any, are deposited in an account maintained with the


 


45

















 


Administrative
Agent which has been pledged as Collateral for the Obligations pursuant to cash
collateral arrangements satisfactory to the Administrative Agent and
thereafter, prior to the occurrence of an Event of Default, used to make
Permitted Acquisitions or to prepay the Term A Loans or the Revolving Loan
pursuant to Section 6.2.1;


 


(h)                                 Earnout
Obligations and/or the deferred purchase price incurred in connection with a
Permitted Acquisition in an amount not to exceed 20% of the purchase price of
such Permitted Acquisition;


 


(i)                                     accretion
and capitalization of interest on Debt otherwise permitted under this
Agreement;


 


(j)                                     Debt
incurred in the ordinary course of business in connection with the financing of
insurance premiums;


 


(k)                                  Debt
incurred in the ordinary course of business in respect of netting services,
overdraft protections and otherwise in connection with deposit accounts;


 


(l)                                     Debt
of an Acquired Entity acquired pursuant to a Permitted Acquisition outstanding
at the time of such Permitted Acquisition, provided that such Debt shall
not have been incurred in contemplation of such Permitted Acquisition;


 


(m)                               Subordinated
Debt incurred in connection with Permitted Acquisitions in an amount not to
exceed the remainder of (x) $75,000,000 less the amount of
Subordinated Debt outstanding under clause (g) above; provided, that
immediately before and after giving effect to the issuance of such Subordinated
Debt no Unmatured Event of Default or Event of Default has occurred and is
continuing; and


 


(n)                                 other
Debt, in addition to the Debt listed above, in an aggregate outstanding amount
not at any time exceeding $500,000.


 


11.2                           Liens.  Not, and not permit any other Loan Party to,
create or permit to exist any Lien on any of its real or personal properties,
assets or rights of whatsoever nature (whether now owned or hereafter
acquired), except:


 


(a)                                  Liens
for taxes or other governmental charges not at the time delinquent or
thereafter payable without penalty or being contested in good faith by
appropriate proceedings and, in each case, for which it maintains adequate
reserves;


 


(b)                                 Liens
arising in the ordinary course of business (such as (i) Liens of carriers,
warehousemen, mechanics, bankers and materialmen and other similar Liens
imposed by law and (ii) Liens in the form of deposits or pledges incurred in
connection with worker’s compensation, unemployment compensation and other
types of social security (excluding Liens arising under ERISA) or in connection
with surety bonds, bids, performance bonds and similar obligations) for sums
not overdue or being contested in good faith by appropriate proceedings and not
involving any advances or borrowed money or the deferred purchase price of
property or services and, in each case, for which it maintains adequate
reserves;


 


(c)                                  Liens
described on Schedule 11.2 as of the Closing Date;


 


(d)                                 subject
to the limitation set forth in Section 11.1(b), (i) Liens arising in
connection with Capital Leases (and attaching only to the property being
leased), (ii) Liens existing on property at the time of the acquisition
thereof by any Loan Party (and not created in contemplation of such


 


46

















 


acquisition)
and (iii) Liens that constitute purchase money security interests on any
property securing debt incurred for the purpose of financing all or any part of
the cost of acquiring such property, provided that any such Lien
attaches to such property within sixty (60) days of the acquisition thereof and
attaches solely to the property so acquired;


 


(e)                                  attachments,
appeal bonds, judgments and other similar Liens, for sums not exceeding
$500,000 (exclusive of amounts covered by valid and collectible insurance other
than self insurance in respect thereof by a Person that has acknowledged its
obligation to make such payment) arising in connection with court proceedings, provided
the execution or other enforcement of such Liens is effectively stayed and the
claims secured thereby are being actively contested in good faith and by
appropriate proceedings;


 


(f)                                    easements,
covenants, conditions, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any material
respect with the ordinary conduct of the business of any Loan Party;


 


(g)                                 Liens
arising under the Loan Documents;


 


(h)                                 the
replacement, extension or renewal of any Lien permitted by clause (c)
above upon or in the same property subject thereto arising out of the
extension, renewal or replacement of the Debt secured thereby (without increase
in the amount thereof);


 


(i)                                     Liens
which arise under Article 4 of the UCC on items in collection and documents and
proceeds related thereto;


 


(j)                                     Liens
arising from precautionary UCC financing statements regarding leases and
consignments;


 


(k)                                  any
interest or title of a licensor, sublicensor, lessor or sublessor under any
lease or lease agreement to the extent limited to each item licensed or leased;


 


(l)                                     Liens
in connection with Hedging Agreements permitted pursuant to this Agreement;


 


(m)                               Liens
on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto; and


 


(n)                                 zoning,
building codes and other land use laws regulating the use or occupancy of real
property which do not interfere, in any material respect, with the ordinary
conduct of the business of any Loan Party and any Liens, encumbrances and
encroachments described in any title insurance policy or survey delivered to
the Administrative Agent.


 


11.3                           Restricted
Payments.  Not, and not permit any
other Loan Party to, (a) make any distribution with respect to its Capital Securities
(other than distributions in-kind), (b) purchase or redeem any of its Capital
Securities, other than purchases from employees, officers and directors of the
Loan Parties upon termination of their employment in an aggregate amount not to
exceed $100,000 in any Fiscal Year, provided that both immediately
before and after giving effect to any such purchase or redemption, no Unmatured
Event of Default or Event of Default shall have occurred and be continuing, (c)
pay any management fees or similar fees to any of its equityholders or any
Affiliate thereof, (d) make any redemption, prepayment, defeasance, repurchase
or any other payment in respect of any Subordinated Debt (other than the Term B
Loans as set forth in Sections 6.2.2(a)(ii) and (iv)) or (e) set
aside funds for any of the foregoing. 
Notwithstanding the foregoing, (i) any Subsidiary may pay dividends or
make other distributions to the Company or to a domestic Wholly-Owned
Subsidiary; and (ii) the Company may make regularly scheduled payments of interest
in respect of Subordinated Debt to the extent permitted under the subordination
provisions thereof. 


 


47

















 


11.4                           Mergers,
Consolidations, Sales.  Not, and not
permit any other Loan Party to, (a) be a party to any merger or
consolidation, or purchase or otherwise acquire all or substantially all of the
assets or any Capital Securities of any class of, or any partnership or joint
venture interest in, any other Person, (b) sell, transfer, convey or lease all
or any substantial part of its assets (including Capital Securities of any
Subsidiary) except for sales of inventory in the ordinary course of business,
or (c) sell or assign with or without recourse any receivables, except for (i)
any such merger, consolidation, sale, transfer, conveyance, lease or assignment
of or by any Wholly-Owned Subsidiary into the Company or into any other
domestic Wholly-Owned Subsidiary; (ii) any such purchase or other acquisition
by the Company or any domestic Wholly-Owned Subsidiary of the assets or Capital
Securities of any Wholly-Owned Subsidiary; (iii) from and after the date
the Term B Loan is Finally Paid, Permitted Acquisitions, (iv) transfers
among Loan Parties, (v) sales and dispositions of assets (including the Capital
Securities of Subsidiaries) for at least fair market value (as determined by
the Board of Directors of the Company) so long as the net book value of all
assets sold or otherwise disposed of in any Fiscal Year does not exceed
$1,000,000 and (vi) the sale of the assets used in the Infrastructure
Software business unit of Bankruptcy Services (which consist mainly of
internally developed software); provided that the Net Cash Proceeds of such
sale do not exceed $2,000,000.


 


11.5                           Modification
of Organizational Documents.  Not
permit the charter, by-laws or other organizational documents of any Loan Party
to be amended or modified in any way which could reasonably be expected to
materially adversely affect the interests of the Lenders.


 


11.6                           Transactions
with Affiliates.  Except as set
forth on Schedule 11.6, not, and not permit any other Loan Party
to, enter into, or cause, suffer or permit to exist any transaction,
arrangement or contract with any of its other Affiliates (other than a
Borrower) which is on terms which are less favorable than are obtainable from
any Person which is not one of its Affiliates; provided that the foregoing
shall not prohibit (a) reasonable compensation, expense reimbursement and
indemnities provided to officers and directors in the ordinary course of
business, (b) reasonable stock option plans, (c) reasonable
employment contracts in the ordinary course of business, (d) stock
repurchases from employees and officers to the extent permitted pursuant to by Section
11.3 and (e) advances to officers and employees permitted pursuant to Section
11.10.


 


11.7                           Unconditional
Purchase Obligations.  Not, and not
permit any other Loan Party to, enter into or be a party to any contract for
the purchase of materials, supplies or other property or services if such
contract requires that payment be made by it regardless of whether delivery is
ever made of such materials, supplies or other property or services.


 


11.8                           Inconsistent
Agreements.  Not, and not permit any
other Loan Party to, enter into any agreement containing any provision which
would (a) be violated or breached by any borrowing by the Company hereunder or
by the performance by any Loan Party of any of its Obligations hereunder or
under any other Loan Document, (b) prohibit any Loan Party from granting to the
Administrative Agent and the Lenders, a Lien on any of its assets or (c) create
or permit to exist or become effective any encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make other distributions to
the Company or any other Subsidiary, or pay any Debt owed to the Company or any
other Subsidiary, (ii) make loans or advances to any Loan Party or (iii)
transfer any of its assets or properties to any Loan Party, other than (A)
customary restrictions and conditions contained in agreements relating to the
sale of all or a substantial part of the assets of any Subsidiary pending such
sale, provided that such restrictions and conditions apply only to the
Subsidiary to be sold and such sale is permitted hereunder (B) restrictions
or conditions imposed by any agreement relating to purchase money Debt, Capital
Leases and other secured Debt permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such Debt and (C) customary
provisions in leases and other contracts restricting the assignment thereof.


 


11.9                           Business
Activities; Issuance of Equity. 
(a)  (i) Not, and not permit
any other Borrower to, engage in any line of business other than the businesses
engaged in on the date hereof and businesses reasonably related thereto and
(ii) not permit any other Loan Party to engage in any business other than that
directly incidental to being a holding company without any independent
operations.


 


48

















 


(b)                                 Not
permit any Loan Party which is not a Borrower to directly or indirectly make,
create, incur, assume or suffer to exist any Debt or any Investment, other than
such Person’s Investment in its Subsidiaries in existence on the Closing Date.


 


(c)                                  Not,
and not permit any other Loan Party to, issue any Capital Securities of a
Subsidiary of the Company other than any issuance by a Subsidiary to the
Company or another Subsidiary in accordance with Section 11.3.


 


11.10                     Investments.  Not permit any Loan Party other than a
Borrower to make or permit to exist any Investment and not, and not permit any
other Loan Party to, make or permit to exist any Investment in any other
Person, except the following:


 


(a)                                  contributions
by the Company to the capital of any Wholly-Owned Subsidiary, or by any
Subsidiary to the capital of any other domestic Wholly-Owned Subsidiary, so
long as the recipient of any such capital contribution has guaranteed the
Obligations and such guaranty is secured by a pledge of all of its Capital
Securities and substantially all of its real and personal property, in each
case in accordance with Section 10.10;


 


(b)                                 Investments
constituting Debt permitted by Section 11.1;


 


(c)                                  Contingent
Liabilities constituting Debt permitted by Section 11.1 or Liens
permitted by Section 11.2;


 


(d)                                 Cash
Equivalent Investments;


 


(e)                                  subject
to Section 10.11, bank deposits in the ordinary course of business;


 


(f)                                    Investments
in securities of Account Debtors received pursuant to any plan of reorganization
or similar arrangement upon the bankruptcy or insolvency of such account
debtors;


 


(g)                                 Investments
listed on Schedule 11.10 as of the Closing Date;


 


(h)                                 Permitted
Acquisitions;


 


(i)                                     earnest
money required in connection with Permitted Acquisitions;


 


(j)                                     Investments
consisting of notes received in connection with an Asset Disposition which have
been pledged to the Administrative Agent as Collateral for the Obligations in
an amount not to exceed 20% of the sales price of such Asset Disposition; and


 


(k)                                  any
Borrower may capitalize or forgive any Debt owed to it by another Loan Party in
the ordinary course of business;


 


(l)                                     loans
to officers and employees of the Borrowers not to exceed $100,000 outstanding
at any time;


 


(m)                               Investments
consisting of guaranties of lease obligations of a Loan Party; and


 


(n)                                 other
Investments in an aggregate amount not to exceed $500,000 at any one time
outstanding.


 


49

















 


provided
that any Investment which when made complies with the requirements of the
definition of the term “Cash Equivalent Investment” may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements.


 


11.11                     Restriction
of Amendments to Certain Documents. 
Not amend or otherwise modify in any manner materially adverse to the
Lenders, or waive any material rights under, any Related Agreements or any
Major Contract.


 


11.12                     Fiscal
Year.  Not change its Fiscal Year.


 


11.13                     Financial
Covenants.


 


11.13.1                                    EBITDA.  Not permit EBITDA as of the last day of any
Computation Period to be less than the applicable amount set forth below for
such Computation Period:


 




	
  Computation

  Period Ending

  	
   

  	
  EBITDA

  	
   

  
	
  December 31,
  2003

  	
   

  	
   

  	
  $

  	
  46,000,000

  	
   

  
	
  March 31,
  2004

  	
   

  	
   

  	
  $

  	
  46,000,000

  	
   

  
	
  June 30,
  2004

  	
   

  	
   

  	
  $

  	
  44,000,000

  	
   

  
	
  September
  30, 2004

  	
   

  	
   

  	
  $

  	
  39,000,000

  	
   

  
	
  December 31,
  2004

  	
   

  	
   

  	
  $

  	
  38,000,000

  	
   

  
	
  March 31,
  2005

  	
   

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  June 30,
  2005

  	
   

  	
   

  	
  $

  	
  41,000,000

  	
   

  
	
  September
  30, 2005

  	
   

  	
   

  	
  $

  	
  43,000,000

  	
   

  
	
  December 31,
  2005

  	
   

  	
   

  	
  $

  	
  45,000,000

  	
   

  
	
  March 31,
  2006

  	
   

  	
   

  	
  $

  	
  47,000,000

  	
   

  
	
  June 30,
  2006

  	
   

  	
   

  	
  $

  	
  49,000,000

  	
   

  
	
  September
  30, 2006

  	
   

  	
   

  	
  $

  	
  52,000,000

  	
   

  
	
  December 31,
  2006

  	
   

  	
   

  	
  $

  	
  52,000,000

  	
   

  






 


11.13.2                                    Interest
Charge Coverage Ratio.  Not permit
the Interest Charge Coverage Ratio as of the last day of any period to be less
than the applicable ratio set forth below for such period:


 




	
  Period

  	
   

  	
  Interest
  Charge Coverage

  Ratio

  	
   

  
	
  Three (3) month period ending March 31,
  2004

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  Six (6) month period ending June 30, 2004

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  Nine (9) month period ending September 30,
  2004

  	
   

  	
  2.85 to 1.00

  	
   

  
	
  Computation Period ending December 31, 2004

  	
   

  	
  2.85 to 1.00

  	
   

  
	
  Computation Period ending March 31, 2005

  	
   

  	
  3.25 to 1.00

  	
   

  
	
  Computation Period ending June 30, 2005

  	
   

  	
  3.50 to 1.00

  	
   

  
	
  Computation Period ending September 30,
  2005

  	
   

  	
  3.75 to 1.00

  	
   

  
	
  Computation Period ending December 31, 2005

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  Computation Period ending March 31, 2006

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  Computation Period ending June 30, 2006

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  Computation Period ending September 30,
  2006

  	
   

  	
  4.00 to 1.00

  	
   

  
	
  Computation Period ending December 31, 2006

  	
   

  	
  4.00 to 1.00

  	
   

  






 


50

















 


11.13.3                                    Senior
Debt to EBITDA Ratio.  Not permit
the Senior Debt to EBITDA Ratio as of the last day of any Computation Period to
exceed the applicable ratio set forth below for such Computation Period:


 




	
  Computation

  Period Ending

  	
   

  	
  Senior
  Debt to

  EBITDA Ratio

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  March 31,
  2004

  	
   

  	
   

  	
  1.50 to 1.00

  	
   

  
	
  June 30,
  2004

  	
   

  	
   

  	
  1.40 to 1.00

  	
   

  
	
  September
  30, 2004

  	
   

  	
   

  	
  1.40 to 1.00

  	
   

  
	
  December 31,
  2004

  	
   

  	
   

  	
  1.30 to 1.00

  	
   

  
	
  March 31,
  2005

  	
   

  	
   

  	
  1.10 to 1.00

  	
   

  
	
  June 30,
  2005

  	
   

  	
   

  	
  1.00 to 1.00

  	
   

  
	
  September
  30, 2005

  	
   

  	
   

  	
  0.90 to 1.00

  	
   

  
	
  December 31,
  2005

  	
   

  	
   

  	
  0.75 to 1.00

  	
   

  
	
  March 31,
  2006

  	
   

  	
   

  	
  0.65 to 1.00

  	
   

  
	
  June 30,
  2006

  	
   

  	
   

  	
  0.50 to 1.00

  	
   

  
	
  September
  30, 2006

  	
   

  	
   

  	
  0.50 to 1.00

  	
   

  
	
  December 31,
  2006

  	
   

  	
   

  	
  0.50 to 1.00

  	
   

  






 


provided,
however, that if the Term B Loan has been Finally Paid, the Company will
not permit the Senior Debt to EBITDA Ratio as of the last day of each
Computation Period (beginning with the Computation Period Ending March 31,
2005) to exceed 1.00 to 1.00.


 


11.13.4                                    Capital
Expenditures.  Not permit the
aggregate amount of all Capital Expenditures made by the Loan Parties in Fiscal
Year 2004 to exceed $13,000,000, in Fiscal Year 2005 to exceed $14,000,000 and
in Fiscal Year 2006 to exceed $15,000,000. 
If the Loan Parties do not utilize the entire amount of Capital
Expenditures permitted in any Fiscal Year, the Loan Parties may carry forward,
to the immediately succeeding Fiscal Year only, 50% of such unutilized amount
(with Capital Expenditures made by the Loan Parties in such succeeding Fiscal
Year applied last to such unutilized amount); provided that, Capital
Expenditures shall not include (A) Permitted Acquisitions or
(B) expenditures to the extent that such expenditures (i) are made as
a tenant in leasehold improvements to the extent reimbursable by the landlord,
(ii) the purchase price paid in connection with a Permitted Acquisition to
the extent such purchase price would otherwise constitute a Capital Expenditure
or (iii) are made with the proceeds of a Disposition of assets which are
used to replace such disposed asset with another asset performing the same or a
similar function within 180 days of such Disposition.


 


11.14                     Cancellation
of Debt.  Not, and not permit any
other Loan Party to, cancel any claim or debt owing to it (other than claims or
debts owed by other Loan Parties permitted pursuant to Section 11.10),
except for reasonable consideration or in the ordinary course of business, and
except for the cancellation of debts or claims not to exceed $250,000 in the
aggregate in any Fiscal Year.


 


51

















 


SECTION 12                             EFFECTIVENESS;
CONDITIONS OF LENDING, ETC.


 


The obligation
of each Lender to make its Loans and of the Issuing Lender to issue Letters of
Credit is subject to the following conditions precedent:


 


12.1                           Initial
Credit Extension.  The obligation of
the Lenders to make the initial Loans and the obligation of the Issuing Lender
to issue its initial Letter of Credit (whichever first occurs) is, in addition
to the conditions precedent specified in Section 12.2, subject to the
conditions precedent that (a) all Debt to be Repaid has been (or concurrently
with the initial borrowing will be) paid in full, and that all agreements and
instruments governing the Debt to be Repaid and that all Liens securing such
Debt to be Repaid have been (or concurrently with the initial borrowing will
be) terminated or released pursuant to a payoff letter and (b) the
Administrative Agent shall have received (i) evidence, reasonably
satisfactory to the Administrative Agent, that the Company has completed, or
concurrently with the initial credit extension hereunder will complete, the
Related Transactions in accordance with the terms of the Related Agreements
(without any material amendment thereto or waiver thereunder unless consented
to by the Lenders); (ii) evidence reasonably satisfactory to it that
(w) the sum of (A) the aggregate purchase price under the Related
Transaction, plus (B) the amount required to refinance all existing Debt
of the Loan Parties shall not exceed $115,000,000, (x) the aggregate fees
and expenses payable by the Company with respect to the Related Transactions
would not exceed $5,500,000, (y) after giving effect to the funding of the Term
Loans and Revolving Loans on the Closing Date and the payment of all costs and
expenses, (A) the Senior Debt to EBITDA Ratio would be equal to or less than
1.45 to 1.00 and (B) the Total Debt to EBITDA Ratio would be equal to or
less than 2.10 to 1.00 and (z) there has been no Material Adverse Effect
with respect to the Company since December 31, 2002 and with respect to P-D
since September 30, 2003; and (iii) all of the following, each duly executed
and dated the Closing Date (or such earlier date as shall be satisfactory to
the Administrative Agent), in form and substance satisfactory to the
Administrative Agent (and the date on which all such conditions precedent have
been satisfied or waived in writing by the Administrative Agent and the Lenders
is called the “Closing Date”):


 


12.1.1                  Notes.  A Revolving Note, Term A Loan Note and/or
Term B Loan Note for each Lender.


 


12.1.2                  Authorization
Documents.  For each Loan Party,
such Person’s (a) charter (or similar formation document), certified by the
appropriate governmental authority; (b) good standing certificates in its state
of incorporation (or formation) and in each other state requested by the
Administrative Agent; (c) bylaws (or similar governing document); (d)
resolutions of its board of directors (or similar governing body) approving and
authorizing such Person’s execution, delivery and performance of the Loan
Documents to which it is party and the transactions contemplated thereby; and
(e) signature and incumbency certificates of its officers executing any of the
Loan Documents (it being understood that the Administrative Agent and each
Lender may conclusively rely on each such certificate until formally advised by
a like certificate of any changes therein), all certified by its secretary or
an assistant secretary (or similar officer) as being in full force and effect
without modification.


 


12.1.3                  Related
Transactions.  Evidence that the Related Transaction shall have been or
shall concurrently be consummated in accordance with applicable law and on satisfactory
terms.  The Related Agreements shall
have satisfactory terms and conditions, and no material provision of such
documentation shall have been waived, amended, supplemented or otherwise
modified in any material respect unless consented to by the Administrative
Agent.  The Loan Parties shall have no
debt other than the Obligations under this Agreement and debt approved by the
Administrative Agent.  The
capitalization and structure of the Loan Parties after the Acquisition shall be reasonably
satisfactory in all respects.  Copies of
the Related Agreements certified by the secretary or assistant secretary (or
similar officer) of the Company as being true, accurate and complete.


 


12.1.4                  Consents,
etc.  Certified copies of all
documents evidencing any necessary corporate or partnership action, consents
and governmental approvals (if any) required for the execution, delivery and
performance by the Loan Parties of the documents referred to in this Section 12.


 


52

















 


12.1.5                  Letter of
Direction.  A letter of direction
containing funds flow information with respect to the proceeds of the Loans on
the Closing Date.


 


12.1.6                  Guaranty and
Collateral Agreement.  A counterpart
of the Guaranty and Collateral Agreement executed by each Loan Party, together
with all instruments, transfer powers and other items required to be delivered
in connection therewith.


 


12.1.7                  Perfection
Certificate.  A Perfection
Certificate completed and executed by each Loan Party.


 


12.1.8                  [Intentionally
Omitted.]


 


12.1.9                  Opinions of
Counsel.  Opinions of counsel for
each Loan Party, including local counsel reasonably requested by the
Administrative Agent, and all other opinions issued pursuant to the Related
Transactions.


 


12.1.10                                    Insurance.  Evidence of the existence of insurance
required to be maintained pursuant to Section 10.3(b), together with
evidence that the Administrative Agent has been named as a lender’s loss payee
and an additional insured on all related insurance policies, as appropriate.


 


12.1.11                                    Payment
of Fees.  Evidence of payment by the
Company of all accrued and unpaid fees, costs and expenses to the extent then
due and payable on the Closing Date, together with all Attorney Costs of the
Administrative Agent to the extent invoiced prior to the Closing Date, plus
such additional amounts of Attorney Costs as shall constitute the
Administrative Agent’s reasonable estimate of Attorney Costs incurred or to be
incurred by the Administrative Agent through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Company and the Administrative Agent).


 


12.1.12                                    Solvency
Certificate.  A Solvency Certificate
executed by a Senior Officer of the Company.


 


12.1.13                                    Financial
Statements.  Copies of (a) the
audited consolidated financial statements for the Company and its Subsidiaries
for Fiscal Years 2000, 2001 and 2002, (b) the audited consolidated
financial statements for P-D and its subsidiaries for the fiscal years ending
September 30, 2002 and 2003, (c) unaudited interim consolidated financial
statements for the Company and its Subsidiaries for each fiscal month and
quarterly period ended after December 31, 2002, (d) unaudited interim
consolidated financial statements for P-D and its subsidiaries for each fiscal
month and quarterly period ended after September 30, 2003 and (e) an
accounting due diligence report prepared by CBIZ using agreed-upon procedures
for P-D for the fiscal years ending September 30, 2002 and 2003.


 


12.1.14                                    Pro
Forma and Projected Financial Statements. 
(a) A consolidated pro forma balance sheet of
the Company as at the Closing Date, adjusted to give effect to the consummation
of the Related Transactions and the financings contemplated hereby as if such
transactions had occurred on such date, consistent in all material respects
with the sources and uses of cash as previously described to the Lenders and
the forecasts previously provided to the Lenders.


 


(b)                                 Projected
balance sheets, statements of income, changes in stockholders’ equity and cash
flows prepared by the Company after giving effect to the consummation of the
Related Transactions and the financings contemplated hereby and the use of the
proceeds therefrom on a quarterly basis for Fiscal Year 2004 and on an annual
basis for Fiscal Year 2005 and 2006.


 


12.1.15                                    Search
Results; Lien Terminations. 
Certified copies of Uniform Commercial Code search reports dated a date
reasonably near to the Closing Date, listing all effective financing statements
which name any Loan Party (under their present names and any previous names) as
debtors, together with (a) copies of such financing statements, (b) payoff
letters evidencing repayment in full of all Debt to be Repaid, the


 


53

















 


termination of all agreements
relating thereto and the release of all Liens granted in connection therewith,
with Uniform Commercial Code or other appropriate termination statements and
documents effective to evidence the foregoing (other than Liens permitted by Section
11.2) and (c) such other Uniform Commercial Code termination statements as
the Administrative Agent may reasonably request.


 


12.1.16                                    Filings,
Registrations and Recordings.  The
Administrative Agent shall have received each document (including Uniform
Commercial Code financing statements) required by the Collateral Documents or
under law or reasonably requested by the Administrative Agent to be filed,
registered or recorded in order to create in favor of the Administrative Agent,
for the benefit of the Lenders, a perfected Lien on the collateral described
therein, prior to any other Liens (subject only to Liens permitted pursuant to Section
11.2), in proper form for filing, registration or recording.


 


12.1.17                                    Closing
Certificate, Consents and Permits. 
A certificate executed by an officer of the Company on behalf of the
Company certifying (a) the matters set forth in Section 12.2.1 as of the
Closing Date and (b) the occurrence of the closing of the Related Transactions
and that such closing has been consummated in accordance with the terms of the
Related Agreements without waiver of any material condition thereof; together
with evidence that (i) all necessary governmental, regulatory, creditor,
shareholder, partner and other material consents, approvals and exemptions
required to be obtained by the Company in connection with the Related
Transactions have been duly obtained and are in full force and effect and (ii)
all material permits necessary for the operation of any business(es) acquired in
connection with the Related Transactions have been obtained.


 


12.1.18                                    Other.  Such other documents as the Administrative
Agent or any Lender may reasonably request.


 


12.2                           Conditions.  The obligation (a) of each Lender to
make each Loan and (b) of the Issuing Lender to issue each Letter of
Credit is subject to the following further conditions precedent that:


 


12.2.1                                          Compliance
with Warranties, No Default, etc. 
Both before and after giving effect to any borrowing and the issuance of
any Letter of Credit, the following statements shall be true and correct:


 


(a)                                  the
representations and warranties of each Loan Party set forth in this Agreement
and the other Loan Documents shall be true and correct in all respects with the
same effect as if then made (except to the extent stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct as of such earlier date); and


 


(b)                                 no
Event of Default or Unmatured Event of Default shall have then occurred and be
continuing.


 


12.2.2                                          Confirmatory
Certificate.  If requested by the
Administrative Agent or any Lender, the Administrative Agent shall
have received (in sufficient counterparts to provide one to each Lender) a
certificate dated the date of such requested Loan or Letter of Credit and
signed by a duly authorized representative of the Company as to the matters set
out in Section 12.2.1 (it being understood that each request by the
Company for the making of a Loan or the issuance of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Company that the
conditions precedent set forth in Section 12.2.1 will be satisfied at
the time of the making of such Loan or the issuance of such Letter of Credit),
together with such other documents as the Administrative Agent or any Lender
may reasonably request in support thereof.


 


SECTION 13     EVENTS
OF DEFAULT AND THEIR EFFECT.


 


13.1                           Events
of Default.  Each of the following
shall constitute an Event of Default under this Agreement:


 


54

















 


13.1.1                                          Non-Payment
of the Loans, etc.  Default in the
payment when due of the principal of any Loan; or default, and continuance
thereof for three (3) Business Days, in the payment when due of any interest,
fee, reimbursement obligation with respect to any Letter of Credit or other
amount payable by the Company hereunder or under any other Loan Document.


 


13.1.2                                          Non-Payment
of Other Debt.  Any default shall
occur under the terms applicable to any Debt of any Loan Party in an aggregate
amount (for all such Debt so affected and including undrawn committed or
available amounts and amounts owing to all creditors under any combined or
syndicated credit arrangement) exceeding $500,000 beyond any period of grace
provided with respect thereto and such default shall (a) consist of the failure
to pay such Debt when due, whether by acceleration or otherwise, or (b)
accelerate the maturity of such Debt or permit the holder or holders thereof,
or any trustee or agent for such holder or holders, to cause such Debt to
become due and payable (or require any Loan Party to purchase or redeem such
Debt or post cash collateral in respect thereof) prior to its expressed
maturity.


 


13.1.3                                          Bankruptcy,
Insolvency, etc.  Any Loan Party
becomes insolvent or generally fails to pay, or admits in writing its inability
or refusal to pay, debts as they become due; or any Loan Party applies for,
consents to, or acquiesces in the appointment of a trustee, receiver or other
custodian for such Loan Party or any property thereof, or makes a general
assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or other custodian is
appointed for any Loan Party or for a substantial part of the property of any
thereof and is not discharged within sixty (60) days; or any bankruptcy,
reorganization, debt arrangement, or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is
commenced in respect of any Loan Party, and if such case or proceeding is not
commenced by such Loan Party, it is consented to or acquiesced in by such Loan
Party, or remains for sixty (60) days undismissed; or any Loan Party takes any
action to authorize, or in furtherance of, any of the foregoing.


 


13.1.4                                          Non-Compliance
with Loan Documents.  (a) Failure by
any Loan Party to comply with or to perform any covenant set forth in Section
10.1.5, 10.3(b), 10.5 or 10.9 or Section 11; or
(b) failure by any Loan Party to comply with or to perform any other
provision of this Agreement or any other Loan Document (and not constituting an
Event of Default under any other provision of this Section 13) and
continuance of such failure described in this clause (b) for thirty (30)
days.


 


13.1.5                                          Representations;
Warranties.  Any representation or
warranty made by any Loan Party herein or any other Loan Document is breached
or is false or misleading in any material respect, or any schedule,
certificate, financial statement, report, notice or other writing (other than
projections and budgets) furnished by any Loan Party to the Administrative
Agent or any Lender in connection herewith is false or misleading in any
material respect on the date as of which the facts therein set forth are stated
or certified.


 


13.1.6                                          Pension
Plans.  (a) Any Person
institutes steps to terminate a Pension Plan if as a result of such termination
the Company or any member of the Controlled Group could be required to make a
contribution to such Pension Plan, or could incur a liability or obligation to
such Pension Plan, in excess of $250,000; (b) a contribution failure
occurs with respect to any Pension Plan sufficient to give rise to a Lien under
Section 302(f) of ERISA; (c) the Unfunded Liability exceeds twenty percent
of the Total Plan Liability, or (d) there shall occur any withdrawal or
partial withdrawal from a Multiemployer Pension Plan and the withdrawal
liability (without unaccrued interest) to Multiemployer Pension Plans as a
result of such withdrawal (including any outstanding withdrawal liability that
the Company or any member of the Controlled Group have incurred on the date of
such withdrawal) exceeds $250,000.


 


13.1.7                                          Judgments.  Final judgments which (exclusive of amounts
covered by valid and collectible insurance other than self insurance in respect
thereof by a Person that has acknowledged its obligation to make such payment)
exceed an aggregate of $500,000 shall be rendered against any Loan Party and
shall not have been paid, discharged or vacated or had execution thereof stayed
pending appeal within forty-five (45) days after entry or filing of such
judgments.


 


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13.1.8                                          Invalidity
of Collateral Documents, etc.  Any
material Collateral Document shall cease to be in full force and effect; or any
Loan Party (or any Person by, through or on behalf of any Loan Party) shall
contest in any manner the validity, binding nature or enforceability of any
Collateral Document.


 


13.1.9                                          Invalidity
of Subordination Provisions, etc. 
Any subordination provision in any document or instrument governing
Subordinated Debt, or any subordination provision in any guaranty by any
Subsidiary of any Subordinated Debt, shall cease to be in full force and
effect, or any Loan Party or any other Person (including the holder of any
applicable Subordinated Debt, unless such Person is also a holder of
Obligations which constitute Senior Debt) shall contest in any manner the
validity, binding nature or enforceability of any such provision.


 


13.1.10                                    Change
of Control.  A Change of Control
shall occur.


 


13.1.11                                    Major
Contracts.  (a) Any Person
shall terminate, discontinue or revoke any of its material obligations under
any Major Contract other than at the scheduled end of the term of such Major
Contract; (b) any Major Contract is terminated by any Person other than at the
scheduled end of the term of such Major Contract; or (c) any breach or
violation of any term or provision of any Major Contract shall occur which
could reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect;


 


13.2                           Effect
of Event of Default.  If any Event
of Default described in Section 13.1.3 shall occur in respect of the
Company, the Commitments shall immediately terminate and the Loans and all
other Obligations hereunder shall become immediately due and payable and the
Borrowers shall become immediately and jointly and severally obligated to Cash
Collateralize all Letters of Credit, all without presentment, demand, protest
or notice of any kind; and, if any other Event of Default shall occur and be
continuing, (a) the Administrative Agent may (and, upon the written
request of the Required Lenders shall) declare the Commitments to be terminated
in whole or in part and/or declare all or any part of the Loans and all other
Obligations hereunder to be due and payable and/or demand that the Borrowers
immediately Cash Collateralize all or any Letters of Credit, whereupon the
Commitments shall immediately terminate (or be reduced, as applicable) and/or
the Loans and other Obligations hereunder shall become immediately due and
payable (in whole or in part, as applicable) and/or the Borrowers shall become
immediately and jointly and severally obligated to Cash Collateralize the
Letters of Credit (all or any, as applicable), and (b) the Required Term B
Lenders may declare all or any part of the Term B Loans and all other
Obligations hereunder relating thereto to be due and payable, all without
presentment, demand, protest or notice of any kind.  The Administrative Agent or the Required Term B Lenders shall
promptly advise the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration. 
Any cash collateral delivered hereunder in connection with any Letter of
Credit shall be held by the Administrative Agent (without liability for
interest thereon) and applied to the Obligations arising in connection with any
drawing under a Letter of Credit.  After
the expiration or termination of all Letters of Credit, such cash collateral
shall be applied by the Administrative Agent to any remaining Obligations
hereunder and any excess shall be delivered to the Company or as a court of
competent jurisdiction may elect. 


 


Notwithstanding
any other provisions of this Agreement, after the Commitments shall have
terminated and the Loans (with accrued interest thereon) and all other
Obligations hereunder and under the Loan Documents (including without
limitation the maximum amount of all contingent liabilities under Letters of
Credit) shall have become due and payable, all amounts collected or received by
the Administrative Agent or any Lender on account of amounts outstanding under
any of the Loan Documents or in respect of the Collateral shall be paid over or
delivered as follows:


 


FIRST, to the
payment of all fees, costs, expenses and indemnities of the Administrative
Agent (in its capacity as such), including Attorney Costs, and any other
Obligations owing to the Agent in respect of sums advanced by the
Administrative Agent to preserve the Collateral or to preserve its security
interest in the Collateral, until paid in full;


 


56

















 


SECOND, to the
payment of all fees, costs, expenses and indemnities (including Attorney Costs)
of the Lenders, pro-rata, until
paid in full;


 


THIRD, to the
payment of all of the Obligations (other than Term B Loans, Bank Product
Obligations and Hedging Obligations) consisting of accrued and unpaid interest
owing to any Lender, pro-rata,
until paid in full;


 


FOURTH, to the
payment of all of the Obligations (other than Term B Loans, Bank Product
Obligations and Hedging Obligations) consisting of principal owing to any
Lender, pro-rata, until paid in
full;


 


FIFTH, to the
payment of the Administrative Agent an amount equal to 110% of all Obligations
in respect of outstanding Letters of Credit to be held as cash collateral in
respect of such obligations;


 


SIXTH, to the
payment of all of the Obligations regarding Term B Loans consisting of accrued
and unpaid interest owing to any such Lender, pro-rata,
until paid in full;


 


SEVENTH, to
the payment of all of the Obligations regarding Term B Loans, consisting of
principal owing to any such Lender, pro-rata,
until paid in full;


 


EIGHTH, to the
payment of all Bank Products Obligations and Hedging Obligations owing to any
Lender or its Affiliates, pro-rata,
until paid in full;


 


NINTH, to the
payment of all other Obligations owing to each Lender, pro-rata, until paid in full; and


 


TENTH, to the
payment of any remaining proceeds, if any, to whomever may be lawfully entitled
to receive such amounts.


 


SECTION 14                             THE
AGENT.


 


14.1                           Appointment
and Authorization.  Each Lender
hereby irrevocably (subject to Section 14.10) appoints, designates and
authorizes the Administrative Agent to take such action on its behalf under the
provisions of this Agreement and each other Loan Document and to exercise such
powers and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Loan Document, the Administrative Agent shall
not have any duty or responsibility except those expressly set forth herein,
nor shall the Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.  Without limiting
the generality of the foregoing sentence, the use of the term “agent” herein
and in other Loan Documents with reference to the Agent is not intended to connote
any fiduciary or other implied (or express) obligations arising under agency
doctrine of any applicable law. 
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.


 


14.2                           Issuing
Lender.  The Issuing Lender shall
act on behalf of the Lenders (according to their Pro Rata Shares) with respect
to any Letters of Credit issued by it and the documents associated therewith.  The Issuing Lender shall have all of the
benefits and immunities (a) provided to the Administrative Agent in this Section
14 with respect to any acts taken or omissions suffered by the Issuing
Lender in connection with Letters of Credit issued by it or proposed to be issued
by it and the applications and agreements for letters of credit pertaining to
such Letters of Credit as fully as if the term “Administrative Agent”, as used
in this Section 14,


 


57

















 


included the Issuing Lender
with respect to such acts or omissions and (b) as additionally provided in this
Agreement with respect to the Issuing Lender.


 


14.3                           Delegation
of Duties.  The Administrative Agent
may execute any of its duties under this Agreement or any other Loan Document
by or through agents, employees or attorneys-in-fact and shall be entitled to
advice of counsel and other consultants or experts concerning all matters
pertaining to such duties.  The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agent or attorney-in-fact that it selects in the absence of gross
negligence or willful misconduct.


 


14.4                           Exculpation
of Administrative Agent.  None of
the Administrative Agent nor any of its directors, officers, employees or agents
shall (a) be liable for any action taken or omitted to be taken by any of them
under or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except to the extent resulting from its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein as determined by a final, nonappealable judgment by a court of
competent jurisdiction), or (b) be responsible in any manner to any Lender or
Participant for any recital, statement, representation or warranty made by any
Loan Party or Affiliate of the Company, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document (or the creation,
perfection or priority of any Lien or security interest therein), or for any
failure of the Borrowers or any other party to any Loan Document to perform
their Obligations hereunder or thereunder. 
The Administrative Agent shall not be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Company or any
of the Company’s Subsidiaries or Affiliates.


 


14.5                           Reliance
by Administrative Agent.  The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, electronic mail message,
affidavit, letter, telegram, facsimile, telex or telephone message, statement
or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel to any Loan Party),
independent accountants and other experts selected by the Administrative
Agent.  The Administrative Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or all of the Lenders or any affected
Lender if such action is required to be consented to by all of Lenders or any
affected Lender pursuant to the terms of Section 16.1) as it deems appropriate
and, if it so requests, confirmation from the Lenders of their obligation to
indemnify the Administrative Agent against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action.  The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders and such request and any action taken or
failure to act pursuant thereto shall be binding upon each Lender.  For purposes of determining compliance with
the conditions specified in Section 12, 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 written notice from such Lender
prior to the proposed Closing Date specifying its objection thereto.


 


14.6                           Notice
of Default.  The Administrative
Agent shall not be deemed to have knowledge or notice of the occurrence of any
Event of Default or Unmatured Event of Default except with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Administrative Agent for the account of the Lenders, unless the Administrative
Agent shall have received written notice from a Lender or the Company referring
to this Agreement, describing such Event of Default or Unmatured Event of
Default and stating that such notice is a “notice of default”.  The Administrative Agent will notify the
Lenders of its receipt of any such


 


58

















 


notice.  The Administrative Agent shall take such
action with respect to such Event of Default or Unmatured Event of Default as
may be requested by the Required Lenders in accordance with Section 13;
provided that unless and until the Administrative Agent has received any such
request, the Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Event of
Default or Unmatured Event of Default as it shall deem advisable or in the best
interest of the Lenders so long as it is not in conflict with any express
provision of this Agreement or any other Loan Document.


 


14.7                           Credit
Decision.  Each Lender acknowledges
that the Administrative Agent has not made any representation or warranty to
it, and that no act by the Administrative Agent hereafter taken, including any
consent and acceptance of any assignment or review of the affairs of the Loan
Parties, shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender as to any matter, including whether the
Administrative Agent has disclosed material information in its possession.  Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Loan Parties, and made its own decision to enter into this Agreement and to
extend credit to the Company hereunder. 
Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the
Borrowers.  Except for notices, reports
and other documents expressly herein required to be furnished to the Lenders by
the Administrative Agent, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial or other
condition or creditworthiness of the Borrowers which may come into the
possession of the Administrative Agent.


 


14.8                           Indemnification.  Whether or not the transactions contemplated
hereby are consummated, each Lender shall indemnify upon demand the
Administrative Agent and its directors, officers, employees and agents (to the
extent not reimbursed by or on behalf of the Borrowers and without limiting the
obligation of the Borrowers to do so), according to its applicable Pro Rata
Share, from and against any and all Indemnified Liabilities (as hereinafter
defined); provided that no Lender shall be liable for any payment to any
such Person of any portion of the Indemnified Liabilities to the extent
determined by a final, nonappealable judgment by a court of competent
jurisdiction to have resulted from the applicable Person’s own gross negligence
or willful misconduct.  No action taken
in accordance with the directions of the Required Lenders (or all of the
Lenders or any affected Lender if such action is required to be consented to by
all of Lenders or any affected Lender pursuant to the terms of Section 16.1)
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section.  Without
limitation of the foregoing, each Lender shall reimburse the Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs and Taxes) incurred by the Administrative Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any
document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrowers.  The undertaking in this
Section shall survive repayment of the Loans, cancellation of the Notes,
expiration or termination of the Letters of Credit, any foreclosure under, or
modification, release or discharge of, any or all of the Collateral Documents,
termination of this Agreement and the resignation or replacement of the
Administrative Agent.


 


14.9                           Administrative
Agent in Individual Capacity. 
LaSalle and its Affiliates may make loans to, issue letters of credit
for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Loan Parties and their Affiliates as
though LaSalle were not the Administrative Agent hereunder and without notice
to or consent of any Lender.  Each
Lender acknowledges that, pursuant to such activities, LaSalle or its Affiliates
may receive


 


59

















 


information regarding the
Borrowers or their Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrowers or such Affiliates) and
acknowledge that the Administrative Agent shall be under no obligation to
provide such information to them.  With
respect to their Loans (if any), 
LaSalle and its Affiliates shall have the same rights and powers under
this Agreement as any other Lender and may exercise the same as though LaSalle
were not the Administrative Agent, and the terms “Lender” and “Lenders”
include LaSalle and its Affiliates, to the extent applicable, in their
individual capacities.


 


14.10                     Successor
Administrative Agent.  The
Administrative Agent may resign as Administrative Agent upon thirty (30) days’
notice to the Lenders.  If the
Administrative Agent resigns under this Agreement, the Required Lenders shall,
with (so long as no Event of Default exists) the consent of the Company (which
shall not be unreasonably withheld or delayed), appoint from among the Lenders
a successor agent for the Lenders.  If
no successor agent is appointed prior to the effective date of the resignation
of the Administrative Agent, the Administrative Agent may appoint, after
consulting with the Lenders and the Company, a successor agent from among the
Lenders.  Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed to
all the rights, powers and duties of the retiring Administrative Agent and the
term “Administrative Agent” shall
mean such successor agent, and the retiring Administrative Agent’s appointment,
powers and duties as Administrative Agent shall be terminated.  After any retiring Administrative Agent’s
resignation hereunder as Administrative Agent, the provisions of this Section
14 and Sections 16.5 and 16.16 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.  If no
successor agent has accepted appointment as Administrative Agent by the date
which is thirty (30) days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Administrative Agent hereunder until such time, if any, as the Required
Lenders appoint a successor agent as provided for above.


 


14.11                     Collateral
Matters.  The Lenders irrevocably
authorize the Administrative Agent, at its option and in its discretion, (a) to
release any Lien granted to or held by the Administrative Agent under any
Collateral Document (i) upon termination of the Commitments and payment in full
of all Loans and all other obligations of the Borrowers hereunder and the expiration
or termination of all Letters of Credit; (ii) constituting property sold or to
be sold or disposed of as part of or in connection with any Disposition
permitted hereunder; or (iii) subject to Section 16.1, if approved,
authorized or ratified in writing by the Required Lenders; or (b) to
subordinate its interest in any Collateral to any holder of a Lien on such
collateral which is permitted by Section 11.2(d)(i) or (d)(iii)
(it being understood that the Administrative Agent may conclusively rely on a certificate
from the Company in determining whether the Debt secured by any such Lien is
permitted by Section 11.1(b)). 
Upon request by the Administrative Agent at any time, the Lenders will
confirm in writing the Administrative Agent’s authority to release, or
subordinate its interest in, particular types or items of Collateral pursuant
to this Section 14.8.  Each
Lender hereby authorizes the Administrative Agent to give blockage notices in
connection with any Subordinated Debt at the direction of Required Lenders and
agrees that it will not act unilaterally to deliver such notices.


 


14.12                     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 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 Borrowers) 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, 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


 


60

















 


and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders and the Administrative
Agent under Sections 5, 16.5 and 16.16) allowed in such
judicial proceedings; and


 


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


 


and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to
pay to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
5, 16.5 and 16.16.


 


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


 


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


 


SECTION 15                             SUBORDINATION
OF TERM LOAN B.


 


15.1                           Subordination
of Subordinated Indebtedness to Senior Indebtedness.  Each Borrower covenants and agrees, and each
Subordinated Lender by its acceptance of a Note evidencing a Term B Loan
(whether upon original issue or upon transfer or assignment) likewise covenants
and agrees, notwithstanding anything to the contrary contained herein or in any
other Loan Documents, that the payment of any and all of the Subordinated
Indebtedness shall be subordinate and subject in right and time of payment, to
the extent and in the manner hereinafter set forth, to the Final Payment of all
Senior Indebtedness.  Each holder of
Senior Indebtedness, whether now outstanding or hereafter created, incurred,
assumed or guaranteed, shall be deemed to have acquired Senior Indebtedness in
reliance upon the provisions contained in this Section 15.


 


15.2                           Subordination
of Liens.  Each Subordinated Lender
hereby covenants and agrees that any Liens and rights of any kind such
Subordinated Lender may now have or hereafter acquire (or be deemed to now have
or hereafter acquire) whether pursuant to the Security Documents or otherwise
against any Borrower or any Loan Party and/or any Company Property, if any,
shall be subordinate and subject to the Liens and rights against any Borrower,
any Loan Party and/or any Company Property of the Senior Lenders arising from
or out of the Senior Indebtedness, regardless of the order, time or manner in
which any Liens attach to or are perfected in any Company Property.


 


15.3                           Permitted
Payments.


 


(a)                                  Notwithstanding
the terms of the Loan Documents, each Borrower hereby agrees that it shall not
make (and will not permit any other Loan Party to make), and each Subordinated
Lender hereby agrees that it will not accept, any payment or distribution with
respect to the Subordinated Indebtedness including any payment or distribution
received through the exercise of any right of setoff, counterclaim or
crossclaim, until the Senior Indebtedness is Finally Paid; provided that
any Borrower may make to the Subordinated Lenders


 


61

















 


and the Subordinated Lenders
may accept (1) subject to the limitation set forth in clause (i) below,
payments of principal of, interest on and other amounts payable with respect
thereto from the proceeds of an issuance of Capital Securities and Subordinated
Debt permitted by Section 11.1(g) and (2) subject to the
following limitations, any scheduled payments in respect of interest on, and
payments in respect of reasonable fees of professionals and expenses payable
with respect to, the Subordinated Indebtedness, all on a non-accelerated basis
and in accordance with the terms of the Loan Documents:


 


(i)                                     If
a Senior Payment Default has occurred, no payment or distribution shall be made
by any Borrower (or any other Loan Party) or accepted by any Subordinated
Lender on the Subordinated Indebtedness until the earlier to occur of (x) the
date on which all Senior Payment Defaults have been cured or waived or (y)
Final Payment of all the Senior Indebtedness.


 


(ii)                                  If
a Senior Covenant Default shall have occurred, no payment or distribution on
the Subordinated Indebtedness shall be made by any Borrower (or any other Loan
Party) or accepted by any Subordinated Lender on the Subordinated Indebtedness
for a period (a “Blockage Period”) of time commencing upon delivery by
the Senior Agent to any Borrower and Subordinated Lenders of written notice
stating that a Senior Covenant Default exists or would be created by the making
of such payment (the “Blockage Notice”) and continuing until the earlier
to occur of (A) 90 days from the date of delivery of the Blockage Notice, or
(B) the date on which all Senior Covenant Defaults have been cured or waived.


 


(iii)                               Upon
the cure or waiver of any Senior Payment Default or the expiration of any
Blockage Period, the Borrowers may make, and the Subordinated Lenders may
receive, any payments of the Subordinated Indebtedness to the extent, if any,
such payment would be permitted under this Section 15.3.


 


(b)                                 No
Senior Payment Default or Senior Covenant Default shall be deemed to have been
waived for purposes of this Section 15.3 unless and until a Borrower
shall have received a written waiver in accordance with this Agreement from the
Senior Agent or the Senior Lenders.


 


(c)                                  If
any Subordinated Lender receives payment pursuant to clause (a) of this Section _15.3,
such payment shall be deemed to constitute a representation by Company that no
Event of Default exists or would result therefrom and that such payment is
otherwise permitted by such clause (a).


 


(d)                                 Notwithstanding
any other provision of this Agreement or the other Loan Documents to the
contrary, no more than one (1) blockage period under Section 15.3(a)(ii)
may occur during the term of this Agreement.


 


(e)                                  The
failure of the Borrowers to make any payment with respect to the Subordinated
Indebtedness by reason of the operation of this Section 15.3 shall not
be construed as preventing the occurrence of an Event of Default under the Loan
Documents.


 


(f)                                    The
Company shall not be prohibited from making, and the Subordinated Lenders shall
not be prohibited from receiving, any payments in respect of the Subordinated
Indebtedness in kind.


 


(g)                                 The
provisions of this Section 15.3 shall not be applicable to the extent
that the provisions of Section 15.5 are applicable.


 


15.4                           Forbearance
of Legal Remedies.


 


(a)                                  Until
the Senior Indebtedness is Finally Paid, the Subordinated Lenders shall not,
without the prior written consent of the Senior Agent, exercise any
Subordinated Lender Remedies, until the earliest to occur of the following:


 


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(i)                                     acceleration
of the Senior Indebtedness;


 


(ii)                                  the
passage of 60 days from the delivery to the Senior Agent of written notice from
the Subordinated Lenders that a default under the Loan Documents has occurred
and such default shall not have been cured or waived within such period;


 


(iii)                               the
commencement or initiation of any Proceeding by a Person other than a
Subordinated Lender or any Person on behalf of a Subordinated Lender.


 


(b)                                 Notwithstanding
anything contained herein to the contrary or any rights or remedies available
to the Subordinated Lenders under any of the Loan Documents, applicable law or
otherwise, prior to the time that the Senior Indebtedness has been Finally
Paid, any payments, distributions or other proceeds obtained by any
Subordinated Lender from the exercise of any Subordinated Lender Remedies shall
in any event be held in trust by it for the benefit of the Senior Agent and the
Senior Lenders and promptly paid or delivered to the Senior Agent for the
benefit of the Senior Lenders in the form received.


 


15.5                           Dissolution,
Liquidation, Reorganization or Bankruptcy.


 


(a)                                  In
the event of any Proceeding involving a Borrower:


 


(i)                                     all
Senior Indebtedness shall be Finally Paid before the Subordinated Lenders shall
be entitled to receive any payment on account of any Subordinated Indebtedness
(except (1) payment in the form of Restructure Securities, and (2) payments in
respect of the Subordinated Indebtedness in kind); and


 


(ii)                                  any
payment or distribution of assets of such Person of any kind or character,
whether in cash, property or securities, to which the Subordinated Lenders
would be entitled except for these provisions, shall be paid by the liquidating
trustee or agent or other Person making such payment or distribution directly
to the Senior Agent, to the extent necessary to make Final Payment of all
Senior Indebtedness remaining unpaid, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of such Senior
Indebtedness.  Each Subordinated Lender
irrevocably authorizes, empowers and directs any debtor, debtor-in-possession,
receiver, trustee or agent or other Person having authority, to pay or
otherwise deliver all such payments or distributions to Senior Agent.


 


(b)                                 Until
the Senior Indebtedness has been Finally Paid, if a Proceeding shall occur and
be continuing, the Subordinated Lenders shall file all claims they may have
against a Borrower.  If the Subordinated
Lenders fail to file such claims prior to ten (10) days before the expiration
of time to do so, the Senior Agent may (but shall have no obligation to) file
such claims in the Subordinated Lenders’ name on behalf of the Senior Lenders.


 


(c)                                  Each
Subordinated Lender shall, in connection with any such Proceeding, retain the
right to vote and otherwise act in any such proceeding (including the right to
vote to accept or reject any plan of partial or complete liquidation, reorganization,
arrangement, composition or extension).


 


(d)                                 If
any Subordinated Lender has or at any time acquires any Lien securing any
Subordinated Indebtedness, such Subordinated Lender agrees not to (i) initiate
any proceeding involving the marshalling of any of Company Property (whether in
a Proceeding or otherwise) or (ii) assert any right it may have to “adequate
protection” of its interest, if any, in such security in any Proceeding and
agrees that it will not seek to have the automatic stay lifted with respect to
such security, in each case without the prior written consent of the Senior
Agent.


 


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15.6                           Obligation
of Company Unconditional.  Nothing
contained herein or in the Loan Documents is intended to or shall impair, as
between the Borrowers and the Subordinated Lenders, the obligation of the
Borrowers, which is absolute and unconditional, to pay to the Subordinated
Lenders the Subordinated Indebtedness as and when the same shall become due and
payable in accordance with its terms, or to affect the relative rights of the
Subordinated Lenders and creditors of any Borrower other than the Senior
Lenders.


 


15.7                           Subordination
Rights Not Impaired by Acts or Omissions of any Borrower or Holders of Senior
Indebtedness.  No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time or in any way be prejudiced or impaired by
any failure to act on the part of the holders of any Senior Indebtedness or a
Borrower or Loan Party, or by any noncompliance by a Borrower or Loan Party
with the terms, provisions and covenants of this Section 15, regardless
of any knowledge thereof that any such holder of Senior Indebtedness may have
or be otherwise charged with, or any amendment or modification of or supplement
to the Loan Documents (to the extent permitted pursuant to the terms hereof )
or any exercise or non-exercise of any right, power or remedy under or in
respect of the Senior Indebtedness.


 


15.8                           Incorrect
Payments.  If any Borrower or any
Loan Party shall make or the Subordinated Lenders shall collect any payment on
account of the principal of, premium or interest on or any other amounts due
under the Subordinated Indebtedness in contravention of this Agreement, such
payments shall be held in trust by the Subordinated Lenders and not commingled
with any assets of any Subordinated Lender and shall be paid over and delivered
to the Senior Agent, for the benefit of the Senior Lenders, promptly upon
receipt thereof.


 


15.9                           Amendment
of the Loan Documents and Loan Documents.


 


(a)                                  Each
Subordinated Lender agrees that it will not, without the prior written consent
of the Senior Agent, agree to any amendment, modification or supplement to the
Loan Documents the effect of which is to (i) increase the maximum principal
amount of the Subordinated Indebtedness (except as may be due to the payment in
kind of any obligations under the Loan Documents) or increase the rate of
interest by more than 200 basis points (other than in connection with the
imposition of default interest), increase the portion of the interest required
to be paid in cash, or increase fees required to be paid with respect to the
Subordinated Indebtedness, (ii) accelerate the dates upon which payments of principal
or interest on the Subordinated Indebtedness are due, (iii) change or add any
event of default or any covenant with respect to the Subordinated Indebtedness,
if the resulting event of default or covenant would be more restrictive to any
Borrower or any Loan Party, (iv) change any redemption or prepayment provisions
of the Subordinated Indebtedness, (v) alter the subordination provisions with
respect to the Subordinated Indebtedness, including subordinating the
Subordinated Indebtedness to any other indebtedness, (vi) take any Liens in any
assets of any Borrower or any Loan Party (other than Liens created pursuant to
the Security Documents) or (vii) change or amend any other term of the Loan
Documents if such change or amendment would result in a Senior Payment Default
or Senior Covenant Default, increase the obligations of any Borrower or any
Loan Party or confer additional material rights on any Subordinated Lender or
any other holder of the Subordinated Indebtedness in a manner adverse to any Borrower,
any Loan Party or the Senior Lenders.


 


(b)                                 The
Senior Indebtedness may at any time be amended, modified, restated, refinanced
or waived without limitation and without notice to, or the consent of, the
Subordinated Lenders; provided that the Senior Lenders shall not,
without the prior written consent of holders of a majority of the outstanding
principal amount of the Subordinated Indebtedness, agree to any amendment,
modification or supplement to the Loan Documents the effect of which is to (i)
increase the principal amount of the Senior Indebtedness in excess of
$70,000,000, less the amount of any principal repayments and commitment
reductions to the extent such payments and reductions cannot be reborrowed
(specifically excluding any such repayments and commitment reductions in
connection with a refinancing), (ii) shorten the amortization payments in
respect of the Senior Indebtedness (other than in connection with exercise of
remedies), or (iii) increase the interest rate margins by more than 200 basis
points (other than in connection with the imposition of default interest).


 


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15.10                     Subrogation.  Subject to the Final Payment of all Senior
Indebtedness, the Subordinated Lenders shall be subrogated to the rights of the
Senior Lenders to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness to the extent that
distributions otherwise payable to the Subordinated Lenders have been applied
to the Senior Indebtedness, until all amounts payable under the Subordinated
Indebtedness shall have been paid in full. 
For purposes of such subrogation, no payments or distributions to the
Senior Lenders of any cash, property or securities to which the Subordinated
Lenders would be entitled except for the provisions of this Agreement, and no
payment pursuant to the provisions of this Agreement to the Senior Lenders by
the Subordinated Lenders shall, as among any Borrower and its creditors other
than the Senior Lenders, be deemed to be a payment or distribution by such
Borrower to or on account of the Senior Indebtedness.  If the Borrowers fail to make any payment on account of the
Subordinated Indebtedness by reason of any provision contained herein, such
failure shall, notwithstanding such provision contained herein, constitute an
Event of Default with respect to the Subordinated Indebtedness if and to the
extent such failure would otherwise constitute such an Event of Default in
accordance with the terms of the Subordinated Indebtedness.


 


15.11                     Termination
of Section.  This Section 15
shall continue and shall be irrevocable until the date all of the Senior
Indebtedness has been Finally Paid or otherwise discharged and released in an
express writing to such effect by the Senior Lenders.


 


15.12                     Reinstatement.  The obligations of the Subordinated Lenders
under this Section 15 shall continue to be effective, or be
reinstated, as the case may be, if at any time any payment in respect of any
Senior Indebtedness is rescinded or must otherwise be restored or returned by
any Senior Lender by reason of any bankruptcy, reorganization, arrangement,
composition or similar proceeding or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Borrower, any Loan Party or any substantial part of its property, or otherwise,
all as though such payment had not been made.


 


15.13                     Defines
Rights of Creditors.  The provisions
of this Section 15 are solely for the purpose of defining the relative
rights of the Senior Lenders and the Subordinated Lenders and shall not be
deemed to create any rights or priorities in favor of any other Person,
including any Borrower. 


 


SECTION 16                             GENERAL.


 


16.1                           Waiver;
Amendments.  No delay on the part of
the Administrative Agent or any Lender in the exercise of any right, power or
remedy shall operate as a waiver thereof, nor shall any single or partial
exercise by any of them of any right, power or remedy preclude other or further
exercise thereof, or the exercise of any other right, power or remedy.  Subject to Section 15.9, no
amendment, modification or waiver of, or consent with respect to, any provision
of this Agreement or the other Loan Documents shall in any event be effective
unless the same shall be in writing and acknowledged by and consented to in
writing by the Required Lenders, and then any such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, that no waiver of an
Unmatured Event of Default or Event of Default or amendment, modification,
waiver or consent with respect to Section 11.13 will be effective with
respect to the Term B Lenders without the written consent of the Required Term
B Lenders.  Subject to Section 15.9,
no amendment, modification, waiver or consent shall (a) extend or increase the
Commitment of any Lender without the written consent of such Lender, (b) extend
the date scheduled for payment of any principal (excluding mandatory
prepayments) of or interest on the Loans or any fees payable hereunder without
the written consent of each Lender directly affected thereby, (c) reduce the
principal amount of any Loan, the rate of interest thereon or any fees payable
hereunder, without the consent of each Lender directly affected thereby (other
than the waiver of the 2% increase in interest rate due to the occurrence of an
Event of Default); or (d) release any party from its obligations under the
Guaranty and Collateral Agreement or all or any substantial part of the
Collateral granted under the Collateral Documents, change the definition of “Required Lenders”, any provision of this Section
16.1 or reduce the aggregate Pro Rata Share required to effect an
amendment, modification, waiver or consent, without, in each case, the written
consent of all Lenders.  No provision of
Section 6.2.2 or Section 6.3 with respect to the timing or
application of mandatory


 


65

















 


prepayments of the Loans shall
be amended, modified or waived without the consent of Lenders having a majority
of the aggregate Pro Rata Shares of the Term Loans affected thereby.  No provision of Section 14 or other
provision of this Agreement affecting the Administrative Agent in its capacity
as such shall be amended, modified or waived without the consent of the
Administrative Agent.  No provision of
this Agreement relating to the rights or duties of the Issuing Lender in its
capacity as such shall be amended, modified or waived without the consent of
the Issuing Lender.  No provision of
this Agreement relating to the rights or duties of the Term B Loan Lenders in
their capacity as such shall be amended, modified or waived without the consent
of the majority of the Term B Loan Lenders, including, without limitation, the
rights of Term B Loan Lenders pursuant to Section 6.2.


 


16.2                           Confirmations.  The Company and each holder of a Note agree
from time to time, upon written request received by it from the other, to
confirm to the other in writing (with a copy of each such confirmation to the
Administrative Agent) the aggregate unpaid principal amount of the Loans then
outstanding under such Note.


 


16.3                           Notices.  Except as otherwise provided in Sections 2.2.2
and 2.2.3, all notices hereunder shall be in writing (including
facsimile transmission) and shall be sent to the applicable party at its
address shown on Annex B or at such other address as such party may, by written
notice received by the other parties, have designated as its address for such
purpose.  Notices sent by facsimile
transmission shall be deemed to have been given when sent; notices sent by mail
shall be deemed to have been given three Business Days after the date when sent
by registered or certified mail, postage prepaid; and notices sent by hand
delivery or overnight courier service shall be deemed to have been given when
received.  For purposes of Sections
2.2.2 and 2.2.3, the Administrative Agent shall be entitled to
rely on telephonic instructions from any person that the Administrative Agent
in good faith believes is an authorized officer or employee of the Company, and
the Borrowers jointly and severally agree to hold the Administrative Agent and
each other Lender harmless from any loss, cost or expense resulting from any
such reliance.


 


16.4                           Computations.  Where the character or amount of any asset
or liability or item of income or expense is required to be determined, or any
consolidation or other accounting computation is required to be made, for the
purpose of this Agreement, such determination or calculation shall, to the
extent applicable and except as otherwise specified in this Agreement, be made
in accordance with GAAP, consistently applied; provided that if the
Company notifies the Administrative Agent that the Borrowers wish to amend any
covenant in Section 11 (or any related definition) to eliminate or to
take into account the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Company that the Required
Lenders wish to amend Section 11 (or any related definition) for such
purpose), then the Borrowers’ compliance with such covenant shall be determined
on the basis of GAAP in effect immediately before the relevant change in GAAP
became effective, until either such notice is withdrawn or such covenant (or
related definition) is amended in a manner satisfactory to the Borrowers and
the Required Lenders.


 


16.5                           Costs
and Expenses.  The Borrowers agree,
jointly and severally, to pay on demand all reasonable out-of-pocket costs and expenses
of the Administrative Agent (including Attorney Costs) in connection with the
preparation, execution, syndication, delivery and administration (including
perfection and protection of any Collateral and the costs of Intralinks (or
similar service), if applicable) of this Agreement, the other Loan Documents
and all other documents provided for herein or delivered or to be delivered
hereunder or in connection herewith (including any amendment, supplement or
waiver to any Loan Document), whether or not the transactions contemplated
hereby or thereby shall be consummated, and all reasonable out-of-pocket costs
and expenses (including Attorney Costs) incurred by the Administrative Agent
and each Lender after an Event of Default in connection with the collection of
the Obligations or the enforcement of this Agreement the other Loan Documents
or any such other documents or during any workout, restructuring or
negotiations in respect thereof.  In
addition, the Borrowers agree, jointly and severally, to pay and to save the
Administrative Agent and the Lenders harmless from all liability for, any fees
of the Company’s auditors in connection with any reasonable exercise by the
Administrative Agent and the Lenders of their rights pursuant to Section
10.2.


 


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All Obligations provided for in
this Section 16.5 shall survive repayment of the Loans, cancellation of
the Notes, expiration or termination of the Letters of Credit and termination
of this Agreement.


 


16.6                           Assignments;
Participations.


 


16.6.1                                          Assignments.  (a) 
Any Lender may at any time assign to one or more Persons (any such
Person, an “Assignee”) all or any portion of such Lender’s Loans and
Commitments, with the prior written consent of the Administrative Agent, the
Issuing Lender (for an assignment of the Revolving Loans and the Revolving
Commitment) and, so long as no Event of Default exists, the Company (which
consents shall not be unreasonably withheld or delayed and shall not be
required for an assignment by a Lender to a Lender or an Affiliate of a
Lender).  Except as the Administrative
Agent and the Company may otherwise agree, any such assignment (i) shall
be in a minimum aggregate amount equal to $5,000,000 or, if less, the remaining
Commitment and Loans held by the assigning Lender and (ii) if such assignment
is a partial assignment of a Lender’s Loans and Commitments, shall not cause
there to be more than five (5) unaffiliated Lenders.  Each Borrower and the Administrative Agent shall be entitled to
continue to deal solely and directly with such Lender in connection with the
interests so assigned to an Assignee until the Administrative Agent shall have
received and accepted an effective assignment agreement in substantially the
form of Exhibit D hereto (an “Assignment Agreement”) executed,
delivered and fully completed by the applicable parties thereto and a
processing fee of $3,500.  No assignment
may be made to any Person if at the time of such assignment any Borrower would
be obligated to pay any greater amount under Section 7.6 or 8 to
the Assignee than such Borrower is then obligated to pay to the assigning
Lender under such Sections (and if any assignment is made in violation of the
foregoing, the Company will not be required to pay such greater amounts).  Any attempted assignment not made in
accordance with this Section 16.6.1 shall be treated as the sale of a
participation under Section 16.6.2. 
Each Borrower shall be deemed to have granted its consent to any
assignment requiring its consent hereunder unless the Company has expressly
objected to such assignment within five (5) Business Days after notice thereof.


 


(b)                                 From
and after the date on which the conditions described above have been met, (i)
such Assignee shall be deemed automatically to have become a party hereto and,
to the extent that rights and obligations hereunder have been assigned to such
Assignee pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (ii) the assigning Lender, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, shall be released from its rights (other than its
indemnification rights) and obligations hereunder.  Upon the request of the Assignee (and, as applicable, the
assigning Lender) pursuant to an effective Assignment Agreement, the Borrowers
shall execute and deliver to the Administrative Agent for delivery to the
Assignee (and, as applicable, the assigning Lender) a Note in the principal
amount of the Assignee’s Pro Rata Share of the Revolving Commitment plus the principal amount of the
Assignee’s Term Loans (and, as applicable, a Note in the principal amount of
the Pro Rata Share of the Revolving Commitment retained by the assigning Lender
plus the principal amount of the
Term Loans retained by the assigning Lender). 
Each such Note shall be dated the effective date of such
assignment.  Upon receipt by the
assigning Lender of such Note, the assigning Lender shall return to the Company
any prior Note held by it.


 


(c)                                  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank, and this Section shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a
security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.


 


16.6.2                                          Participations.  Any Lender may at any time sell to one or
more Persons participating interests in its Loans, Commitments or other
interests hereunder (any such Person, a “Participant”); provided
that in no event shall there be more than five (5) unaffiliated Participants at
any time.  In the event of a sale by a
Lender of a participating interest to a Participant, (a) such Lender’s
obligations hereunder shall remain unchanged for all purposes, (b) the Borrowers
and the Administrative Agent shall continue to deal solely and


 


67

















 


directly with such Lender in
connection with such Lender’s rights and obligations hereunder, (c) all
amounts payable by the Borrowers shall be determined as if such Lender had not
sold such participation and shall be paid directly to such Lender and (d) for
purposes of monitoring the number of Participants hereunder, such Lender shall
promptly notify the Administrative Agent of such sale.  No Participant shall have any direct or
indirect voting rights hereunder except with respect to any event described in Section
16.1 expressly requiring the unanimous vote of all Lenders or, as
applicable, all affected Lenders.  Each
Lender agrees to incorporate the requirements of the preceding sentence into
each participation agreement which such Lender enters into with any
Participant.  The Borrowers agree that
if amounts outstanding under this Agreement are due and payable (as a result of
acceleration or otherwise), each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under this
Agreement and with respect to any Letter of Credit to the same extent as if the
amount of its participating interest were owing directly to it as a Lender
under this Agreement; provided that such right of set-off shall be
subject to the obligation of each Participant to share with the Lenders, and
the Lenders agree to share with each Participant, as provided in Section 7.5.  The Borrowers also agree that each
Participant shall be entitled to the benefits of Section 7.6 or 8
as if it were a Lender (provided that on the date of the participation
no Participant shall be entitled to any greater compensation pursuant to Section
7.6 or 8 than would have been paid to the participating Lender on
such date if no participation had been sold and that each Participant complies
with Section 7.6(d) as if it were an Assignee).


 


16.7                           Register.  The Administrative Agent shall maintain a
copy of each Assignment Agreement delivered and accepted by it and register
(the “Register”) for the recordation of names and addresses of the
Lenders and the Commitment of each Lender from time to time and whether such
Lender is the original Lender or the Assignee. 
No assignment shall be effective unless and until the Assignment
Agreement is accepted and registered in the Register.  All records of transfer of a Lender’s interest in the Register
shall be conclusive, absent manifest error, as to the ownership of the
interests in the Loans.  The
Administrative Agent shall not incur any liability of any kind with respect to
any Lender with respect to the maintenance of the Register.


 


16.8                           GOVERNING LAW.  THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES.


 


16.9                           Confidentiality.  The Administrative Agent and each Lender agree
to use commercially reasonable efforts (equivalent to the efforts the
Administrative Agent or such Lender applies to maintain the confidentiality of
its own confidential information) to maintain as confidential all information
provided to them by any Loan Party and designated as confidential, except that
the Administrative Agent and each Lender may disclose such information (a) to
Persons employed or engaged by the Administrative Agent or such Lender in
evaluating, approving, structuring or administering the Loans and the
Commitments; (b) to any Assignee or Participant or potential Assignee or
Participant that has agreed to comply with the covenant contained in this Section
16.9 (and any such Assignee or Participant or potential Assignee or
Participant may disclose such information to Persons employed or engaged by
them as described in clause (a) above); (c) as required or requested by any
federal or state regulatory authority or examiner, or any insurance industry
association, or as reasonably believed by the Administrative Agent or such
Lender to be compelled by any court decree, subpoena or legal or administrative
order or process; (d) as, on the advice of the Administrative Agent’s or such
Lender’s counsel, is required by law; (e) in connection with the exercise of
any right or remedy under the Loan Documents or in connection with any
litigation to which the Administrative Agent or such Lender is a party; (f) to
any nationally recognized rating agency that requires access to information
about a Lender’s investment portfolio in connection with ratings issued with
respect to such Lender; (g) to any Affiliate of the Administrative Agent, the
Issuing Lender or any other Lender who may provide Bank Products to the Loan
Parties; or (h) that ceases to be confidential through no fault of the
Administrative Agent or any Lender. 
Notwithstanding the foregoing, the Borrowers hereby consent to the
publication by the Administrative Agent or any Lender of a “tombstone” or similar
advertising material relating to the financing transactions


 


68

















 


contemplated by this Agreement,
and the Administrative Agent reserves the right to provide to industry trade
organizations information necessary and customary for inclusion in league table
measurements.


 


16.10                     Severability.  Whenever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.  All obligations of the
Borrowers and rights of the Administrative Agent and the Lenders expressed
herein or in any other Loan Document shall be in addition to and not in
limitation of those provided by applicable law.


 


16.11                     Nature of
Remedies.  All Obligations of the
Borrowers and rights of the Administrative Agent and the Lenders expressed
herein or in any other Loan Document shall be in addition to and not in
limitation of those provided by applicable law.  No failure to exercise and no delay in exercising, on the part of
the Administrative Agent or any Lender, 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.


 


16.12                     Entire
Agreement.  This Agreement, together
with the other Loan Documents, embodies the entire agreement and understanding
among the parties hereto and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof (except as relates to the fees described in Section 5.3)
and any prior arrangements made with respect to the payment by the Company of
(or any indemnification for) any fees, costs or expenses payable to or incurred
(or to be incurred) by or on behalf of the Administrative Agent or the Lenders.


 


16.13                     Counterparts.  This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts and each such counterpart shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
Agreement.  Receipt of an executed
signature page to this Agreement by facsimile or other electronic transmission
shall constitute effective delivery thereof. 
Electronic records of executed Loan Documents maintained by the Lenders
shall deemed to be originals.


 


16.14                     Successors
and Assigns.  This Agreement shall
be binding upon the Borrowers, the Lenders and the Administrative Agent
and their respective successors and assigns, and shall inure to the benefit of
the Borrowers, the Lenders and the Administrative Agent and the successors and
assigns of the Lenders and the Administrative Agent.  No other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection with,
this Agreement or any of the other Loan Documents.  No Borrower may assign or transfer any of its rights or
Obligations under this Agreement without the prior written consent of the
Administrative Agent and each Lender.


 


16.15                     Captions.  Section captions used in this
Agreement are for convenience only and shall not affect the construction
of this Agreement.


 


16.16                     Patriot
Act Notification.  As required by
federal law and LaSalle’s policies and practices, LaSalle may need to collect
certain customer identification information and documentation in connection
with opening or maintaining accounts, or establishing or continuing to provide
services.


 


16.17                 INDEMNIFICATION
BY THE BORROWERS.  IN CONSIDERATION
OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE ADMINISTRATIVE AGENT AND
THE LENDERS AND THE AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER,
EACH BORROWER HEREBY AGREES, JOINTLY AND SEVERALLY, TO INDEMNIFY, EXONERATE AND
HOLD THE ADMINISTRATIVE AGENT, EACH LENDER AND EACH OF THE OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES AND AGENTS OF THE


 


69

















 


ADMINISTRATIVE
AGENT AND EACH LENDER (EACH A “LENDER PARTY”) FREE AND HARMLESS FROM AND
AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES,
DAMAGES AND EXPENSES, INCLUDING ATTORNEY COSTS (COLLECTIVELY, THE “INDEMNIFIED
LIABILITIES”), INCURRED BY THE LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR
ARISING OUT OF, OR RELATING TO (A) ANY TENDER OFFER, MERGER, PURCHASE OF
CAPITAL SECURITIES, PURCHASE OF ASSETS (INCLUDING THE RELATED TRANSACTIONS) OR
OTHER SIMILAR TRANSACTION FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN
PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE
USE, HANDLING, RELEASE, EMISSION, DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT
OR DISPOSAL OF ANY HAZARDOUS SUBSTANCE AT ANY PROPERTY OWNED OR LEASED BY ANY LOAN
PARTY, (C) ANY VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS
AT ANY PROPERTY OWNED OR LEASED BY ANY LOAN PARTY OR THE OPERATIONS CONDUCTED
THEREON, (D) THE INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT
WHICH ANY LOAN PARTY OR THEIR RESPECTIVE PREDECESSORS ARE ALLEGED TO HAVE
DIRECTLY OR INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES OR (E) THE
EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY’S GROSS
NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL,
NONAPPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION.  IF AND TO THE EXTENT THAT THE FOREGOING
UNDERTAKING MAY BE UNENFORCEABLE FOR ANY REASON, THE BORROWERS HEREBY AGREE TO
MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE
INDEMNIFIED LIABILITIES WHICH IS PERMISSIBLE UNDER APPLICABLE LAW.  ALL OBLIGATIONS PROVIDED FOR IN THIS SECTION
16.17 SHALL SURVIVE REPAYMENT OF THE LOANS, CANCELLATION OF THE NOTES,
EXPIRATION OR TERMINATION OF THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR
ANY MODIFICATION, RELEASE OR DISCHARGE OF, ANY OR ALL OF THE COLLATERAL
DOCUMENTS AND TERMINATION OF THIS AGREEMENT.


 


16.18                     Nonliability
of Lenders.  The relationship
between the Borrowers on the one hand and the Lenders and the Administrative
Agent on the other hand shall be solely that of borrower and lender.  Neither the Administrative Agent nor any
Lender has any fiduciary relationship with or duty to any Loan Party arising
out of or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Loan Parties, on the one hand, and the
Administrative Agent and the Lenders, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor.  Neither the Administrative Agent nor any Lender undertakes any
responsibility to any Loan Party to review or inform any Loan Party of any matter
in connection with any phase of any Loan Party’s business or operations.  The Borrowers agree, on behalf of themselves
and each other Loan Party, that neither the Administrative Agent nor any Lender
shall have liability to any Loan Party (whether sounding in tort, contract or
otherwise) for losses suffered by any Loan Party in connection with, arising
out of, or in any way related to the transactions contemplated and the
relationship established by the Loan Documents, or any act, omission or event occurring
in connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted from
the gross negligence, bad faith or willful misconduct of the party from which
recovery is sought.  NO LENDER PARTY SHALL BE LIABLE FOR ANY DAMAGES
ARISING FROM THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED
THROUGH INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN
CONNECTION WITH THIS AGREEMENT, NOR SHALL ANY LENDER PARTY HAVE ANY LIABILITY
WITH RESPECT TO, AND EACH BORROWER ON BEHALF OF ITSELF AND EACH OTHER LOAN
PARTY, HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR ANY SPECIAL, INDIRECT
OR CONSEQUENTIAL DAMAGES RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR
ARISING OUT OF ITS ACTIVITIES IN CONNECTION


 


70

















 


HEREWITH
OR THEREWITH (WHETHER BEFORE OR AFTER THE CLOSING DATE).  Each Borrower
acknowledges that it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents to which it is a
party.  No joint venture is created
hereby or by the other Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among the Loan Parties
and the Lenders


 


16.19                     FORUM SELECTION AND CONSENT TO
JURISDICTION.  ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT NOTHING IN THIS AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE THE ADMINISTRATIVE AGENT FROM BRINGING SUIT OR
TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION.  EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY
SUCH LITIGATION AS SET FORTH ABOVE. 
EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF ILLINOIS.  EACH BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


16.20                     WAIVER OF JURY TRIAL.  EACH OF THE BORROWERS, THE ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, ANY NOTE,
ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP EXISTING IN CONNECTION WITH
ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


[signature pages follow]


 


71

















 


The parties
hereto have caused this Agreement to be duly executed and delivered by their
duly authorized officers as of the date first set forth above.


 


	
   

  	
  EPIQ SYSTEMS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/   Elizabeth
  M. Braham

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANKRUPTCY SERVICES LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/   Elizabeth
  M. Braham

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  POORMAN-DOUGLAS CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/   Elizabeth
  M. Braham

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION, as
  Administrative Agent, as Issuing Lender and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/   Keith
  Cable

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION, as Syndication
  Agent and as a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
    /s/   Vijaya
  Kulkarni

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  
				



 


72

















 


ANNEX A


LENDERS AND PRO RATA SHARES


 


	
  Lender

  	
   

  	
  Revolving 

  Commitment

  Amount

  	
   

  	
  Pro Rata

  Share*/

  	
   

  	
  Term A
  Loan

  Commitment

  	
   

  	
  Pro

  Rata

  Share*/

  	
   

  	
  Term B
  Loan 

  Commitment

  	
   

  	
  Pro Rata

  Share*/

  	
   

  
	
  LaSalle Bank National Association

  	
   

  	
  $

  	
  12,500,000

  	
   

  	
  50

  	
  %

  	
  $

  	
  22,500,000

  	
   

  	
  50

  	
  %

  	
  $

  	
  30,000,000

  	
   

  	
  100

  	
  %

  
	
  KeyBank National Association

  	
   

  	
  $

  	
  12,500,000

  	
   

  	
  50

  	
  %

  	
  $

  	
  22,500,000

  	
   

  	
  50

  	
  %

  	
  $

  	
  0

  	
   

  	
  0

  	
  %

  
	
  TOTALS

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  100

  	
  %

  	
  $

  	
  45,000,000

  	
   

  	
  100

  	
  %

  	
  $

  	
  30,000,000

  	
   

  	
  100

  	
  %

  



 


 












*/                                     Carry
out to nine decimal places.


 


73

















 


ANNEX B


 


ADDRESSES FOR NOTICES


 


EPIQ SYSTEMS,
INC., BANKRUPTCY SERVICES LLC, POORMAN-DOUGLAS CORPORATION


 


c/o EPIQ Systems, Inc.


501 Kansas Avenue


Kansas City, Kansas 66104


Attention: Elizabeth Braham


Telephone: (913) 621-9983


Facsimile: (913) 621-7281


 


LASALLE BANK
NATIONAL ASSOCIATION, as Administrative Agent, Issuing
Lender and a Lender


 


Notices of Borrowing, Conversion,
Continuation and Letter of Credit Issuance


 


135 South LaSalle Street


Chicago, Illinois 60603


Attention: Keith J. Cable


Telephone: (312) 904-7621


Facsimile:  (312) 904-6242


 


All Other Notices


 


135 South LaSalle Street


Chicago, Illinois 60603


Attention: Keith J. Cable


Telephone: (312) 904-7621


Facsimile:  (312) 904-6242


 


 


KEYBANK
NATIONAL ASSOCIATION, as Syndication Agent and a
Lender


 


127 Public Square


6th Floor


Cleveland, Ohio 44114


Attention: Vijaya Kulkarni


Telephone: 216-689-0238


Facsimile: 216-689-8329


 


74