**Exhibit 10.1**

** **

Published CUSIP Number: 48667JAA9

** **

** **

**CREDIT AGREEMENT**

 

Dated as of September 15, 2005

 

among

 

**KEANE, INC.**

as the Borrower,

 

**BANK OF AMERICA, N.A.,**as Administrative Agent, Swing Line LenderandL/C Issuer,

 

**KEYBANK NATIONAL ASSOCIATION**

as

Syndication Agent,

 

 

**WACHOVIA BANK, NATIONAL ASSOCIATION**

as

Documentation Agent

 

 

and

 

The Other Lenders Party Hereto

 

**BANC OF AMERICA SECURITIES LLC,**

as

Sole Lead Arranger and Sole Book Manager

 

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| ARTICLE I.   | DEFINITIONS  AND ACCOUNTING TERMS                                                      |   |
|-------------------|----------------------------------------------------------------------------------------|--------|
|              |                                                                                   |   |
| 1.01              | Defined  Terms                                                                         |   |
| 1.02              | Other  Interpretive Provisions                                                         |   |
| 1.03              | Accounting Terms                                                                       |   |
| 1.04              | Rounding                                                                               |   |
| 1.05              | Times of Day                                                                           |   |
| 1.06              | Letter of Credit Amounts                                                               |   |
|              |                                                                                   |   |
| ARTICLE II.  | THE COMMITMENTS AND CREDIT  EXTENSIONS                                                 |   |
|              |                                                                                   |   |
| 2.01              | Committed Loans                                                                        |   |
| 2.02              | Borrowings, Conversions and  Continuations of Committed Loans                          |   |
| 2.03              | Letters of Credit                                                                      |   |
| 2.04              | Swing Line Loans                                                                       |   |
| 2.05              | Prepayments                                                                            |   |
| 2.06              | Termination or Reduction of Commitments                                                |   |
| 2.07              | Repayment of Loans                                                                     |   |
| 2.08              | Interest                                                                               |   |
| 2.09              | Fees                                                                                   |   |
| 2.10              | Computation of Interest and Fees                                                       |   |
| 2.11              | Evidence of Debt                                                                       |   |
| 2.12              | Payments Generally; Administrative  Agent’s Clawback                              |   |
| 2.13              | Sharing of Payments by Lenders                                                         |   |
| 2.14              | Increase in Commitments                                                                |   |
|              |                                                                                   |   |
| ARTICLE III. | TAXES, YIELD PROTECTION AND  ILLEGALITY                                                |   |
|              |                                                                                   |   |
| 3.01              | Taxes                                                                                  |   |
| 3.02              | Illegality                                                                             |   |
| 3.03              | Inability to Determine Rates                                                           |   |
| 3.04              | Increased Costs; Reserves on Eurodollar  Rate Loans                                    |   |
| 3.05              | Compensation for Losses                                                                |   |
| 3.06              | Mitigation Obligations; Replacement of  Lenders                                        |   |
| 3.07              | Survival                                                                               |   |
|              |                                                                                   |   |
| ARTICLE IV.  | CONDITIONS PRECEDENT TO CREDIT  EXTENSIONS                                             |   |
|              |                                                                                   |   |
| 4.01              | Conditions of Initial Credit Extension                                                 |   |
| 4.02              | Conditions to all Credit Extensions                                                    |   |
|              |                                                                                   |   |
| ARTICLE V.   | REPRESENTATIONS  AND WARRANTIES                                                        |   |
|              |                                                                                   |   |
| 5.01              | Existence, Qualification and Power;  Compliance with Laws                              |   |
| 5.02              | Authorization; No Contravention                                                        |   |
| 5.03              | Governmental Authorization; Other  Consents                                            |   |
| 5.04              | Binding Effect                                                                         |   |
| 5.05              | Financial Statements; No Material  Adverse Effect; No Internal Control Event; Solvency |   |
| 5.06              | Litigation                                                                             |   |

 

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| 5.07              | No Default                                                                      |   |
|-------------------|---------------------------------------------------------------------------------|--------|
| 5.08              | Ownership of Property; Liens                                                    |   |
| 5.09              | Environmental Compliance                                                        |   |
| 5.10              | Insurance                                                                       |   |
| 5.11              | Taxes                                                                           |   |
| 5.12              | ERISA Compliance                                                                |   |
| 5.13              | Subsidiaries; Equity Interests                                                  |   |
| 5.14              | Margin Regulations; Investment Company  Act; Public Utility Holding Company Act |   |
| 5.15              | Disclosure                                                                      |   |
| 5.16              | Compliance with Laws                                                            |   |
| 5.17              | Intellectual Property; Licenses, Etc                                            |   |
| 5.18              | Status of Loan as Senior Debt                                                   |   |
| 5.19              | Subordinated Debt Documents                                                     |   |
| 5.20              | No Other Senior Debt                                                            |   |
|              |                                                                            |   |
| ARTICLE VI.  | AFFIRMATIVE  COVENANTS                                                          |   |
|              |                                                                            |   |
| 6.01              | Financial Statements                                                            |   |
| 6.02              | Certificates; Other Information                                                 |   |
| 6.03              | Notices                                                                         |   |
| 6.04              | Payment of Obligations                                                          |   |
| 6.05              | Preservation of Existence, Etc                                                  |   |
| 6.06              | Maintenance of Properties                                                       |   |
| 6.07              | Maintenance of Insurance                                                        |   |
| 6.08              | Compliance with Laws                                                            |   |
| 6.09              | Books and Records                                                               |   |
| 6.10              | Inspection Rights                                                               |   |
| 6.11              | Use of Proceeds                                                                 |   |
| 6.12              | Additional Guarantors                                                           |   |
| 6.13              | New Subsidiaries                                                                |   |
| 6.14              | Worldzen Ownership                                                              |   |
| 6.15              | Post Closing Matters                                                            |   |
|              |                                                                            |   |
| ARTICLE VII. | NEGATIVE  COVENANTS                                                             |   |
|              |                                                                            |   |
| 7.01              | Liens                                                                           |   |
| 7.02              | Investments                                                                     |   |
| 7.03              | Indebtedness                                                                    |   |
| 7.04              | Fundamental Changes                                                             |   |
| 7.05              | Dispositions                                                                    |   |
| 7.06              | Restricted Payments                                                             |   |
| 7.07              | Change in Nature of Business                                                    |   |
| 7.08              | Transactions with Affiliates                                                    |   |
| 7.09              | Burdensome Agreements                                                           |   |
| 7.10              | Use of Proceeds                                                                 |   |
| 7.11              | Subordinated Debt                                                               |   |
| 7.12              | Senior Debt                                                                     |   |

 

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| 7.13               | Financial Covenants                                     |   |
|--------------------|---------------------------------------------------------|--------|
|               |                                                    |   |
| ARTICLE VIII. | EVENTS OF  DEFAULT AND REMEDIES                         |   |
|               |                                                    |   |
| 8.01               | Events of Default                                       |   |
| 8.02               | Remedies Upon Event of Default                          |   |
| 8.03               | Application of Funds                                    |   |
|               |                                                    |   |
| ARTICLE IX.   | ADMINISTRATIVE AGENT                                    |   |
|               |                                                    |   |
| 9.01               | Appointment and Authority                               |   |
| 9.02               | Rights as a Lender                                      |   |
| 9.03               | Exculpatory Provisions                                  |   |
| 9.04               | Reliance by Administrative Agent                        |   |
| 9.05               | Delegation of Duties                                    |   |
| 9.06               | Resignation of Administrative Agent                     |   |
| 9.07               | Non-Reliance on Administrative Agent  and Other Lenders |   |
| 9.08               | No Other Duties, Etc                                    |   |
| 9.09               | Administrative Agent May File  Proofs of Claim     |   |
| 9.10               | Guaranty Matters                                        |   |
|               |                                                    |   |
| ARTICLE X.    | MISCELLANEOUS                                           |   |
|               |                                                    |   |
| 10.01              | Amendments, Etc                                         |   |
| 10.02              | Notices; Effectiveness; Electronic  Communication       |   |
| 10.03              | No Waiver; Cumulative Remedies                          |   |
| 10.04              | Expenses; Indemnity; Damage Waiver                      |   |
| 10.05              | Payments Set Aside                                      |   |
| 10.06              | Successors and Assigns                                  |   |
| 10.07              | Treatment of Certain Information;  Confidentiality      |   |
| 10.08              | Right of Setoff                                         |   |
| 10.09              | Interest Rate Limitation                                |   |
| 10.10              | Counterparts; Integration;  Effectiveness               |   |
| 10.11              | Survival of Representations and  Warranties             |   |
| 10.12              | Severability                                            |   |
| 10.13              | Replacement of Lenders                                  |   |
| 10.14              | Governing Law; Jurisdiction; Etc                        |   |
| 10.15              | Waiver of Jury Trial                                    |   |
| 10.16              | USA PATRIOT Act Notice                                  |   |
|               |                                                    |   |
| SIGNATURES         |                                                    |

 

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| **SCHEDULES** |                                                               |   |
|---------------|--------------------------------------------------------------------|--------|
|          |                                                               |   |
| 2.01          | Commitments and Applicable  Percentages                            |   |
| 5.06          | Litigation                                                         |   |
| 5.13          | Subsidiaries; Other  Equity Investments                            |   |
| 7.01          | Existing Liens                                                     |   |
| 7.02          | Existing Investments                                               |   |
| 7.03          | Existing Indebtedness                                              |   |
| 7.05          | Permitted Dispositions                                             |   |
| 10.02         | Administrative Agent’s Office;  Certain Addresses for Notices |   |
| 10.06         | Processing and Recordation Fees                                    |   |
|          |                                                               |   |
| **EXHIBITS**  |                                                               |   |
|          |                                                               |   |
|          | ***Form of***                                                 |   |
|          |                                                               |   |
| A             | Committed Loan  Notice                                             |   |
| B             | Swing Line Loan  Notice                                            |   |
| C             | Note                                                               |   |
| D             | Compliance  Certificate                                            |   |
| E             | Assignment and  Assumption                                         |   |
| F             | Guaranty                                                           |   |
| G             | Opinion Matters                                                    |   |

 

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**CREDIT AGREEMENT**

 

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

 

The Borrower hasrequested that the Lendersprovide a revolving credit facility, and the Lenders are willing to do so onthe terms and conditions set forth herein.

 

In considerationof the mutual covenants and agreementsherein contained, the parties hereto covenant and agree as follows:

 

**ARTICLE I.DEFINITIONS AND ACCOUNTING TERMS**

** **

**1.01****                       ****Defined Terms**. As used in this Agreement, the following terms shall have the meaningsset forth below:

 

“AccountsReceivable” means rights of the Borrower or any of its Subsidiaries topayment for goods sold, leased or otherwise marketed in the ordinary course ofbusiness and all rights of the Borrower or any of its Subsidiaries to paymentfor services rendered in the ordinary course of business and all sums of moneyor other proceeds due thereon pursuant to transactions with account debtorsrecorded on books of account in accordance with GAAP.

 

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

 

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

 

“AdministrativeQuestionnaire” means an Administrative Questionnaire in a form supplied bythe Administrative Agent.

 

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

 

“AggregateCommitments” means the Commitments of all the Lenders.

 

“Agreement”means this Credit Agreement.

 

“ApplicablePercentage” means with respect to any Lender at any time, the percentage(carried out to the ninth decimal place) of the Aggregate Commitmentsrepresented by such Lender’s Commitment at such time.  If the commitment of each Lender to makeLoans and the

 

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obligation of the L/C Issuer to make L/C Credit Extensions have beenterminated pursuant to Section 8.02 or if the Aggregate Commitmentshave expired, then the Applicable Percentage of each Lender shall be determinedbased on the Applicable Percentage of such Lender most recently in effect,giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth oppositethe name of such Lender on Schedule 2.01 or in the Assignment andAssumption pursuant to which such Lender becomes a party hereto, as applicable.

 

“ApplicableRate” means the following percentages per annum, based upon theConsolidated Senior Leverage Ratio as set forth in the most recent ComplianceCertificate received by the Administrative Agent pursuant to Section 6.02(b):

 

**Applicable Rate**

 

| **Pricing  Level** | ** ** | **Senior  Leverage  Ratio**      | ** ** | **Commitment  Fee** | ** ** | **Eurodollar  Rate +  Letters of  Credit** | ** ** | **Base  Rate  +** | ** ** |
|--------------------|------------|----------------------------------|------------|---------------------|------------|--------------------------------------------|------------|-------------------|------------|
| 1                  |       | <0.75:1.00                    |       | .20                 | %          | 1.00                                       | %          | 0                 | %          |
| 2                  |       | <1.50:1.00  but >0.75:1.00 |       | .225                | %          | 1.25                                       | %          | .25               | %          |
| 3                  |       | >1.50:1.00                    |       | .25                 | %          | 1.50                                       | %          | .50               | %          |

 

Any increase ordecrease in the Applicable Rate resulting from a change in the ConsolidatedSenior Leverage Ratio shall become effective as of the first Business Dayimmediately following the date a Compliance Certificate is delivered pursuantto Section 6.02(b); provided, however, that if aCompliance Certificate is not delivered when due in accordance with suchSection, then Pricing Level 3 shall apply as of the first Business Day afterthe date on which such Compliance Certificate was required to have beendelivered until the date such Compliance Certificate is delivered, at whichtime the Pricing Level shall be adjusted to be the Pricing Level based on theConsolidated Senior Leverage Ratio as set forth in such ComplianceCertificate.  .  The Applicable Rate in effect from theClosing Date through December 31, 2005 shall be determined based uponPricing Level 1.

 

“Approved Fund”means any Fund that is administered or managed by (a) a Lender, (b) anAffiliate of a Lender or (c) an entity or an Affiliate of an entity thatadministers or manages a Lender and which Fund is approved by (i) theAdministrative Agent and (ii) unless an Event of Default has occurred andis continuing, the Borrower (each such approval not to be unreasonably withheldor delayed).

 

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

 

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

 

2

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“Assignment andAssumption” means an assignment and assumption entered into by a Lender andan Eligible Assignee (with the consent of any party whose consent is requiredby Section 10.06(b)), and accepted by the Administrative Agent, insubstantially the form of Exhibit E or any other form approved bythe Administrative Agent.

 

“AttributableIndebtedness” means, on any date, (a) in respect of any capital leaseof any Person, the capitalized amount thereof that would appear on a balancesheet of such Person prepared as of such date in accordance with GAAP, and (b) inrespect of any Synthetic Lease Obligation, the capitalized amount of theremaining lease payments under the relevant lease that would appear on abalance sheet of such Person prepared as of such date in accordance with GAAPif such lease were accounted for as a capital lease.

 

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

 

“AvailabilityPeriod” means the period from and including the Closing Date to theearliest of (a) the Maturity Date, (b) the date of termination of theAggregate Commitments pursuant to Section 2.06, and (c) thedate of termination of the commitment of each Lender to make Loans and of theobligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02.

 

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

 

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

 

“Base RateCommitted Loan” means a Committed Loan that is a Base Rate Loan.

 

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

 

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

 

“BorrowerMaterials” has the meaning specified in Section 6.02.

 

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

 

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

 

3

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

 

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

 

“CashEquivalents” means as to the Borrower and its Subsidiaries, (a) securitiesissued or directly and fully guaranteed or insured by the United States ofAmerica and having a maturity of not more than one (1) year from the dateof acquisition; (b) certificates of deposit, time deposits and eurodollartime deposits with maturities of one (1) year or less from the date ofacquisition, bankers’ acceptances with maturities not exceeding one (1) yearand overnight bank deposits, in each case, (i) with any Lenders or (ii) withany domestic commercial bank organized under the laws of the United States ofAmerica or any state thereof or a foreign subsidiary of such bank, in each casehaving a rating of not less than A or its equivalent by S&P or anysuccessor and having capital and surplus in excess of $1,000,000,000; (c) certificatesof deposit, time deposits and eurodollar time deposits with maturities of one (1) yearor less from the date of acquisition, bankers’ acceptances with maturities notexceeding one (1) year and overnight bank deposits, in each case, in anaggregate amount not to exceed $10,000,000 and with any commercial bankorganized under the laws of a country which is a member of the Organization forEconomic Cooperation and Development, or a political subdivision of suchcountry, in each case having capital and surplus in excess of $400,000,000; (d) repurchaseobligations with a term of not more than seven (7) days for underlyingsecurities of the types described in clauses (a), (b) and (c) above;and (e) any commercial paper or finance company paper issued by (i) anyLender or any holding company controlling any Lender or (ii) any otherPerson that is rated not less than “P-1” or “A-1” or their equivalents by Moody’sor S&P or their successors.

 

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

 

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

 

(a)                                  any “person” or “group” (as such termsare used in Sections 13(d) and 14(d) of the Securities Exchange Actof 1934, but excluding (i) any employee benefit plan of such person or itssubsidiaries, and any person or entity acting in its capacity as trustee, agentor other fiduciary or administrator of any such plan and (ii) John Keaneand any member of his family), becomes the “beneficial owner” (as defined in Rules 13d-3and 13d-5 under the Securities Exchange Act of 1934, except that a person orgroup shall be deemed to have “beneficial ownership” of all securities thatsuch person or group has the right to acquire (such right, an “option right”),whether such right is exercisable immediately or only after the passage oftime), directly or indirectly, of 35% or more of the equity securities of theBorrower entitled to vote for members of the board of directors or equivalentgoverning body of the Borrower on a fully-diluted basis (and taking intoaccount all such securities that such person or group has the right to acquirepursuant to any option right);

 

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(b)                                 during any period of 12  consecutive months, a majority of the membersof the board of directors or other equivalent governing body of the Borrowercease to be composed of individuals (i) who were members of that board orequivalent governing body on the first day of such period, (ii) whoseelection or nomination to that board or equivalent governing body was approvedby individuals referred to in clause (i) above constituting at the time ofsuch election or nomination at least a majority of that board or equivalentgoverning body or (iii) whose election or nomination to that board orother equivalent governing body was approved by individuals referred to inclauses (i) and (ii) above constituting at the time of such electionor nomination at least a majority of that board or equivalent governing body(excluding, in the case of both clause (ii) and clause (iii), anyindividual whose initial nomination for, or assumption of office as, a memberof that board or equivalent governing body occurs as a result of an actual orthreatened solicitation of proxies or consents for the election or removal ofone or more directors by any person or group other than a solicitation for theelection of one or more directors by or on behalf of the board of directors);or

 

(c)                                  any Person or two or more Persons (excludingJohn Keane and any member of his family) acting in concert shall have acquiredby contract or otherwise, or shall have entered into a contract or arrangementthat, upon consummation thereof, will result in its or their acquisition of thepower to exercise, directly or indirectly, a controlling influence over themanagement or policies of the Borrower, or control over the equity securitiesof the Borrower entitled to vote for members of the board of directors orequivalent governing body of the Borrower on a fully-diluted basis (and takinginto account all such securities that such Person or group has the right toacquire pursuant to any option right) representing 35% or more of the combinedvoting power of such securities.

 

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

 

“Code”means the Internal Revenue Code of 1986.

 

“Commitment”means, as to each Lender, its obligation to (a) make Committed Loans tothe Borrower pursuant to Section 2.01, (b) purchaseparticipations in L/C Obligations, and (c) purchase participations inSwing Line Loans, in an aggregate principal amount at any one time outstandingnot to exceed the amount set forth opposite such Lender’s name on Schedule 2.01or in the Assignment and Assumption pursuant to which such Lender becomes aparty hereto, as applicable, as such amount may be adjusted from time to timein accordance with this Agreement.

 

“CommittedBorrowing” means a borrowing consisting of Committed Loans of the same Typeand, in the case of Eurodollar Rate Loans, having the same Interest Period madeby each of the Lenders pursuant to Section 2.01.

 

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

 

5

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

 

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

 

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

 

“ConsolidatedEBITDA” means, for any period, for the Borrower and its Subsidiaries on aconsolidated basis, an amount equal to the sum of (a) Consolidated NetIncome for such period plus (b) in each case to the extent deductedin the calculation of such Consolidated Net Income and without duplication, (i) depreciationand amortization for such period, plus (ii) income tax expense forsuch period, plus (iii) Consolidated Total Interest Expense paid oraccrued during such period, plus (iv) other noncash charges forsuch period, minus (c) to the extent added in computingConsolidated Net Income, and without duplication, all noncash gains (includingincome tax benefits) for such period, in each case as determined in accordancewith GAAP.  For purposes of calculating Consolidated EBITDA for any period in which aPermitted Acquisition has occurred, Consolidated EBITDA shall be adjusted in amanner which is reasonable acceptable to the Administrative Agent in allrespects to give effect to the consummation of such Permitted Acquisition on apro forma basis as if such Permitted Acquisition had occurred on the first dateof the test period (but without duplication for any adjustments made in thedefinition of Consolidated Total Interest Expense and Consolidated Net Income).

 

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

 

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

 

6

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

 

“ConsolidatedTotal Assets” means all assets of the Borrower and its Subsidiariesdetermined on a consolidated basis in accordance with GAAP.

 

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

 

“Consolidated Total Interest Expense” means, for any period, theaggregate amount of interest required to be paid or accrued by the Borrower andits Subsidiaries during such period on all Indebtedness of the Borrower and itsSubsidiaries outstanding during all or any part of such period, whether suchinterest was or is required to be reflected as an item of expense orcapitalized, including payments consisting of interest in respect ofAttributable Indebtedness in respect of capital leases and Synthetic LeaseObligations, and including commitment fees, agency fees, facility fees, balancedeficiency fees and similar fees or expenses in connection with the borrowingof money.  For purposes of calculatingConsolidated Total Interest Expense for any period in which a PermittedAcquisition has occurred, Consolidated Total Interest Expense shall be adjustedin a manner which is reasonably acceptable to the Administrative Agent in allrespects to give effect to the consummation of such Permitted Acquisition on apro forma basis as if such Permitted Acquisition had occurred on the first dateof the test period

 

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

 

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

 

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

 

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

 

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United States or other applicable jurisdictions from time to time ineffect and affecting the rights of creditors generally.

 

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

 

“Default Rate”means (a) when used with respect to Obligations other than Letter ofCredit Fees, an interest rate equal to (i) the Base Rate plus (ii) theApplicable Rate, if any, applicable to Base Rate Loans plus (iii) 2%per annum; provided, however, that with respect to a Eurodollar RateLoan, the Default Rate shall be an interest rate equal to the interest rate(including any Applicable Rate) otherwise applicable to such Loan plus 2% perannum, and (b) when used with respect to Letter of Credit Fees, a rateequal to the Applicable Rate plus 2% per annum.

 

“DefaultingLender” means any Lender that (a) has failed to fund any portion ofthe Committed Loans, participations in L/C Obligations or participations inSwing Line Loans required to be funded by it hereunder within one Business Dayof the date required to be funded by it hereunder, (b) has otherwisefailed to pay over to the Administrative Agent or any other Lender any otheramount required to be paid by it hereunder within one Business Day of the datewhen due, unless the subject of a good faith dispute, or (c) has beendeemed insolvent or become the subject of a bankruptcy or insolvencyproceeding.

 

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

 

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

 

“Disposition”or “Dispose” means the sale, transfer, license, lease or otherdisposition (including any sale and leaseback transaction) of any property byany Person, including any sale, assignment, transfer or other disposal, with orwithout recourse, of any notes or accounts receivable or any rights and claimsassociated therewith.

 

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

 

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

 

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

 

“EnvironmentalLaws” means any and all Federal, state, local, and foreign statutes, laws,regulations, ordinances, rules, judgments, orders, decrees, permits,concessions, grants, franchises, licenses, agreements or governmentalrestrictions relating to pollution and the protection of the environment or therelease of any materials into the environment, including those related tohazardous substances or wastes, air emissions and discharges to waste or publicsystems.

 

“Environmental Liability” means any liability, contingent orotherwise (including any liability for damages, costs of environmentalremediation, fines, penalties or indemnities), of the Borrower, any other LoanParty or any of their respective Subsidiaries directly or indirectlyresulting from or based upon (a) violation of any Environmental Law, (b) thegeneration, use, handling, transportation, storage, treatment or disposal ofany Hazardous Materials, (c) exposure to any Hazardous Materials, (d) therelease or threatened release of any Hazardous Materials into the environmentor (e) any contract, agreement or other consensual arrangement pursuant towhich liability is assumed or imposed with respect to any of the foregoing.

 

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

 

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

 

“ERISAAffiliate” means any trade or business (whether or not incorporated) undercommon control with the Borrower within the meaning of Section 414(b) or(c) of the Code (and Sections 414(m) and (o) of the Code for purposes ofprovisions relating to Section 412 of the Code).

 

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

 

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Section 4001(a)(2) of ERISA) or a cessation of operationsthat is treated as such a withdrawal under Section 4062(e) of ERISA; (c) acomplete or partial withdrawal by the Borrower or any ERISA Affiliate from aMultiemployer Plan or notification that a Multiemployer Plan is in reorganization;(d) the filing of a notice of intent to terminate, the treatment of a Planamendment as a termination under Sections 4041 or 4041A of ERISA, or thecommencement of proceedings by the PBGC to terminate a Pension Plan orMultiemployer Plan; (e) an event or condition which constitutes groundsunder Section 4042 of ERISA for the termination of, or the appointment ofa trustee to administer, any Pension Plan or Multiemployer Plan; or (f) theimposition of any liability under Title IV of ERISA, other than for PBGCpremiums due but not delinquent under Section 4007 of ERISA, upon theBorrower or any ERISA Affiliate.

 

“EurodollarRate” means, for any Interest Period with respect to a Eurodollar RateLoan, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBALIBOR”), as published by Reuters (or other commercially available sourceproviding quotations of BBA LIBOR as designated by the Administrative Agentfrom time to time) at approximately 11:00 a.m., London time, two BusinessDays prior to the commencement of such Interest Period, for Dollar deposits(for delivery on the first day of such Interest Period) with a term equivalentto such Interest Period.  If such rate isnot available at such time for any reason, then the “Eurodollar Rate” for suchInterest Period shall be the rate per annum determined by the AdministrativeAgent to be the rate at which deposits in Dollars for delivery on the first dayof such Interest Period in same day funds in the approximate amount of theEurodollar Rate Loan being made, continued or converted by Bank of America andwith a term equivalent to such Interest Period would be offered by Bank ofAmerica’s London Branch to major banks in the London interbank eurodollarmarket at their request at approximately 11:00 a.m. (London time) twoBusiness Days prior to the commencement of such Interest Period.

 

“EurodollarRate Loan” means a Committed Loan that bears interest at a rate based onthe Eurodollar Rate.

 

“Event ofDefault” has the meaning specified in Section 8.01.

 

“Excluded Taxes”means, with respect to the Administrative Agent, any Lender, the L/C Issuer orany other recipient of any payment to be made by or on account of anyobligation of the Borrower hereunder, (a) taxes imposed on or measured by itsoverall net income (however denominated), and franchise taxes imposed on it (inlieu of net income taxes), by the jurisdiction (or any political subdivisionthereof) under the laws of which such recipient is organized or in which itsprincipal office is located or, in the case of any Lender, in which itsapplicable Lending Office is located, (b) any branch profits taxes imposedby the United States or any similar tax imposed by any other jurisdiction inwhich the Borrower is located and (c) in the case of a Foreign Lender(other than an assignee pursuant to a request by the Borrower under Section 10.13),any withholding tax that is imposed on amounts payable to such Foreign Lenderat the time such Foreign Lender becomes a party hereto (or designates a newLending Office) or is attributable to such Foreign Lender’s failure orinability (other than as a result of a Change in Law) to comply with Section 3.01(e),except to the extent that such Foreign Lender (or its assignor, if any) wasentitled, at the time of designation of a new Lending Office (or assignment),to receive additional amounts from the Borrower with respect to suchwithholding tax pursuant to Section 3.01(a).

 

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“ExistingCredit Agreement” means that certain Revolving Credit Agreement dated as ofFebruary 28, 2003 among the Borrower, Bank of America, N.A. (as successorby merger to Fleet National Bank), as agent, and a syndicate of lenders, asamended.

 

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

 

“Federal FundsRate”means,for any day, the rate per annum equal to the weighted average of the rates onovernight Federal funds transactions with members of the Federal Reserve Systemarranged by Federal funds brokers on such day, as published by the FederalReserve Bank of New York on the Business Day next succeeding such day; providedthat (a) if such day is not a Business Day, the Federal Funds Rate forsuch day shall be such rate on such transactions on the next preceding BusinessDay as so published on the next succeeding Business Day, and (b) if nosuch rate is so published on such next succeeding Business Day, the FederalFunds Rate for such day shall be the average rate (rounded upward, ifnecessary, to a whole multiple of 1/100 of 1%) charged to Bank of America onsuch day on such transactions as determined by the Administrative Agent.

 

“Fee Letter”means the letter agreement, dated September 15, 2005, among the Borrower,the Administrative Agent and the Arranger.

 

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

 

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

 

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

 

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

 

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“GovernmentalAuthority” means the government of the United States or any other nation,or of any political subdivision thereof, whether state or local, and anyagency, authority, instrumentality, regulatory body, court, central bank orother entity exercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government (includingany supra-national bodies such as the European Union or the European CentralBank).

 

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

 

“Guarantee”means, as to any Person, any (a) any obligation, contingent or otherwise,of such Person guaranteeing or having the economic effect of guaranteeing anyIndebtedness or other obligation payable or performable by another Person (the “primaryobligor”) in any manner, whether directly or indirectly, and including anyobligation of such Person, direct or indirect, (i) to purchase or pay (oradvance or supply funds for the purchase or payment of) such Indebtedness orother obligation, (ii) to purchase or lease property, securities orservices for the purpose of assuring the obligee in respect of suchIndebtedness or other obligation of the payment or performance of suchIndebtedness or other obligation, (iii) to maintain working capital,equity capital or any other financial statement condition or liquidity or levelof income or cash flow of the primary obligor so as to enable the primaryobligor to pay such Indebtedness or other obligation, or (iv) entered intofor the purpose of assuring in any other manner the obligee in respect of suchIndebtedness or other obligation of the payment or performance thereof or toprotect such obligee against loss in respect thereof (in whole or in part), or (b) anyLien on any assets of such Person securing any Indebtedness or other obligationof any other Person, whether or not such Indebtedness or other obligation isassumed by such Person (or any right, contingent or otherwise, of any holder ofsuch Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to thestated or determinable amount of the related primary obligation, or portionthereof, in respect of which such Guarantee is made or, if not stated ordeterminable, the maximum reasonably anticipated liability in respect thereofas determined by the guaranteeing Person in good faith.  The term “Guarantee” as a verb has acorresponding meaning.

 

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

 

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

 

“Hazardous Materials” means all explosive or radioactivesubstances or wastes and all hazardous or toxic substances, wastes or otherpollutants, including petroleum or petroleum distillates, asbestos orasbestos-containing materials, polychlorinated biphenyls, radon gas,

 

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

 

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

 

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

 

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

 

(c)                                  net obligations of such Person under anySwap Contract;

 

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

 

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

 

(f)                                    capital leases and Synthetic LeaseObligations;

 

(g)                                 all obligations of such Person topurchase, redeem, retire, defease or otherwise make any payment in respect ofany Equity Interest in such Person or any other Person, valued, in the case ofa redeemable preferred interest, at the greater of its voluntary or involuntaryliquidation preference plus accrued and unpaid dividends;

 

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

 

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

 

For all purposeshereof, the Indebtedness of any Person shall include the Indebtedness of anypartnership or joint venture (other than a joint venture that is itself acorporation or limited liability company) in which such Person is a general partneror a joint venturer, unless such Indebtedness is expressly made non-recourse tosuch Person.  The amount of any netobligation under any Swap Contract on any date shall be deemed to be the SwapTermination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of anydate shall be deemed to be the amount of Attributable Indebtedness in respectthereof as of such date.

 

“IndemnifiedTaxes” means Taxes other than Excluded Taxes.

 

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

 

“IndentureTrustee” means Wachovia National Bank.

 

“Information”has the meaning specified in Section 10.07.

 

“IntangibleAssets” means assets that are considered to be intangible assets underGAAP.

 

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

 

“InterestPeriod” means, as to each Eurodollar Rate Loan, the period commencing onthe date such Eurodollar Rate Loan is disbursed or converted to or continued asa Eurodollar Rate Loan and ending on the date one, two, three or six monthsthereafter, as selected by the Borrower in its Committed Loan Notice; providedthat:

 

(i)                                     any Interest Period that would otherwiseend on a day that is not a Business Day shall be extended to the nextsucceeding Business Day unless such Business Day falls in another calendarmonth, in which case such Interest Period shall end on the next precedingBusiness Day;

 

(ii)                                  any Interest Period that begins on thelast Business Day of a calendar month (or on a day for which there is nonumerically corresponding day in the calendar month at the end of such InterestPeriod) shall end on the last Business Day of the calendar month at the end ofsuch Interest Period; and

 

(iii)                               no Interest Period shall extend beyondthe Maturity Date.

 

“InternalControl Event” means a material weakness in, or fraud that involvesmanagement or other employees who have a significant role in, the Borrower’sinternal controls over financial reporting, in each case as described in theSecurities Laws.

 

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“Investment”means, as to any Person, any direct or indirect acquisition or investment bysuch Person, whether by means of (a) the purchase or other acquisition ofcapital stock or other securities of another Person, (b) a loan, advanceor capital contribution to, Guarantee or assumption of debt of, or purchase orother acquisition of any other debt or equity participation or interest in,another Person, including any partnership or joint venture interest in suchother Person and any arrangement pursuant to which the investor GuaranteesIndebtedness of such other Person, or (c) the purchase or otheracquisition (in one transaction or a series of transactions) of assets ofanother Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shallbe the amount actually invested, without adjustment for subsequent increases ordecreases in the value of such Investment.

 

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

 

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

 

“IRS” meansthe United States Internal Revenue Service.

 

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

 

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

 

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

 

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

 

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

 

“L/CCredit Extension” means, with respect to any Letter of Credit, the issuancethereof or extension of the expiry date thereof, or the increase of the amountthereof.

 

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

 

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

 

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

 

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

 

“Letter ofCredit” means any letter of credit issued hereunder and shall include theExisting Letters of Credit.  A Letter ofCredit may be a commercial letter of credit or a standby letter of credit.

 

“Letter ofCredit Application” means an application and agreement for the issuance oramendment of a Letter of Credit in the form from time to time in use by the L/CIssuer.

 

“Letter ofCredit Expiration Date” means the day that is seven days prior to theMaturity Date then in effect (or, if such day is not a Business Day, the nextpreceding Business Day).

 

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

 

“Letter ofCredit Sublimit” means an amount equal to $50,000,000.  The Letter of Credit Sublimit is part of, andnot in addition to, the Aggregate Commitments.

 

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

 

“Lien”means any mortgage, pledge, hypothecation, assignment, deposit arrangement,encumbrance, lien (statutory or other), charge, or other security agreement orpreferential arrangement in the nature of a security interest of any kind ornature whatsoever (including any conditional sale or other title retentionagreement, any easement, right of way or other encumbrance on title to realproperty, and any financing lease having substantially the same economic effectas any of the foregoing).

 

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

 

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

 

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

 

“MaterialAdverse Effect” means (a) a material adverse effect upon, theoperations, business, properties, liabilities (actual or contingent), condition(financial or otherwise) or prospects of the Borrower or the Borrower and itsSubsidiaries taken as a whole; (b) a material impairment of the ability ofthe Borrower or the Borrower and the Guarantors, taken as a whole, to performits or their obligations under any Loan Document to which it is or they are aparty; or (c) a material adverse effect upon the legality, validity,binding effect or enforceability against any Loan Party of any Loan Document towhich it is a party.

 

“MaterialSubsidiary”means, as of any date of determination, any Domestic Subsidiary with respect towhich any of the following criteria has been met: (a) the aggregaterevenue generated by such Domestic Subsidiary for the relevant Reference Periodequals or exceeds an amount equal to five percent (5%) of the consolidatedaggregate revenues generated by the Borrower and its Subsidiaries for suchReference Period, or (b) the aggregate book value of the assets of suchDomestic Subsidiary equals or exceeds five percent (5%) of the then currentbook value of the aggregate assets of the Borrower and its Subsidiaries, or (c) isotherwise required to become a Guarantor hereunder.  A Domestic Subsidiary that is a MaterialSubsidiary at any date pursuant to this definition shall continue to be or bedeemed to be a Material Subsidiary at all times thereafter, without regard tothe results of any future re-determination pursuant to this definition.

 

“Maturity Date”means September 15, 2010.

 

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

 

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

 

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

 

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

 

“Obligations”means all advances to, and debts, liabilities, obligations, covenants andduties of, any Loan Party arising under any Loan Document or otherwise withrespect to any Loan or Letter of Credit, or arising under any Swap Contractwith a Lender, in each case whether direct or indirect (including thoseacquired by assumption), absolute or contingent, due or to

 

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become due, now existing or hereafter arising and including interestand fees that accrue after the commencement by or against any Loan Party or anyAffiliate thereof of any proceeding under any Debtor Relief Laws naming suchPerson as the debtor in such proceeding, regardless of whether such interestand fees are allowed claims in such proceeding.

 

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

 

“OrganizationDocuments” means, (a) with respect to any corporation, the certificateor articles of incorporation and the bylaws (or equivalent or comparableconstitutive documents with respect to any non-U.S. jurisdiction); (b) withrespect to any limited liability company, the certificate or articles offormation or organization and operating agreement; and (c) with respect toany partnership, joint venture, trust or other form of business entity, thepartnership, joint venture or other applicable agreement of formation ororganization and any agreement, instrument, filing or notice with respectthereto filed in connection with its formation or organization with theapplicable Governmental Authority in the jurisdiction of its formation ororganization and, if applicable, any certificate or articles of formation or organizationof such entity.

 

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

 

“OutstandingAmount” means (i) with respect to Committed Loans and Swing Line Loanson any date, the aggregate outstanding principal amount thereof after givingeffect to any borrowings and prepayments or repayments of Committed Loans andSwing Line Loans, as the case may be, occurring on such date; and (ii) withrespect to any L/C Obligations on any date, the amount of such L/C Obligationson such date after giving effect to any L/C Credit Extension occurring on suchdate and any other changes in the aggregate amount of the L/C Obligations as ofsuch date, including as a result of any reimbursements by the Borrower ofUnreimbursed Amounts.

 

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

 

“PBGC”means the Pension Benefit Guaranty Corporation.

 

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

 

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

 

“Person”means any natural person, corporation, limited liability company, trust, jointventure, association, company, partnership, Governmental Authority or otherentity.

 

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

 

“Platform”has the meaning specified in Section 6.02.

 

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

 

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

 

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

 

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

 

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

 

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

 

“RequiredLenders” means, as of any date of determination, Lenders having more than50% of the Aggregate Commitments or, if the commitment of each Lender to makeLoans and the obligation of the L/C Issuer to make L/C Credit Extensions havebeen terminated pursuant to Section 8.02, Lenders holding in theaggregate more than 50% of the Total Outstandings (with the aggregate amount ofeach Lender’s risk participation and funded participation in L/C Obligationsand Swing Line Loans being deemed “held” by such Lender for purposes of thisdefinition); provided that the Commitment of, and the portion of theTotal Outstandings held or

 

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deemed held by, any Defaulting Lender shall be excluded for purposes ofmaking a determination of Required Lenders.

 

“ResponsibleOfficer” means the chief executive officer, president, chief financialofficer or treasurer of a Loan Party. Any document delivered hereunder that is signed by a Responsible Officerof a Loan Party shall be conclusively presumed to have been authorized by allnecessary corporate, partnership and/or other action on the part of such LoanParty and such Responsible Officer shall be conclusively presumed to have actedon behalf of such Loan Party.

 

“RestrictedPayment” means any (a) dividend or other distribution (whether incash, securities or other property) with respect to any capital stock or otherEquity Interest of the Borrower or any Subsidiary, or any payment (whether incash, securities or other property), including any sinking fund or similardeposit, on account of the purchase, redemption, retirement, acquisition,cancellation or termination of any such capital stock or other Equity Interest,or on account of any return of capital to the Borrower’s stockholders, partnersor members (or the equivalent Person thereof), other than a dividend on or inrespect of any shares of any class of capital stock of the Borrower payablesolely in shares of common stock of the Borrower; (b) payment orprepayment by the Borrower or its Subsidiaries to the Borrower’s shareholders(or other equity holders) and, if a Subsidiary’s shareholder is a Person otherthan the Borrower or another Subsidiary, to such shareholder (or other equityholder) (a “Nonaffiliated Shareholder”)unless an equal and ratable payment is simultaneously being made to suchSubsidiary’s other shareholders which are not Nonaffiliated Shareholders, (c) derivativesor other transactions with any financial institution, commodities or stockexchange or clearinghouse (a “DerivativesCounterparty”)obligating the Borrower or any Subsidiary to make payments to such DerivativesCounterparty as a result of any change in market value of any Capital Stock ofthe Borrower or such Subsidiary or (d) payment in respect of any phantomstock plan or similar interests.

 

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

 

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

 

“SEC” meansthe Securities and Exchange Commission, or any Governmental Authoritysucceeding to any of its principal functions.

 

“SecuritiesLaws” means the Securities Act of 1933, the Securities Exchange Act of1934, Sarbanes-Oxley and the applicable accounting and auditing principles,rules, standards and practices promulgated, approved or incorporated by the SECor the Public Company Accounting Oversight Board, as each of the foregoing maybe amended and in effect on any applicable date hereunder.

 

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

 

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

 

“SubordinatedDebt” means unsecured Indebtedness of the Borrower that is expresslysubordinated and made junior to the payment and performance in full of theObligations, as evidenced as such by the Subordinated Indenture or by anotherwritten instrument containing subordination provisions and terms and conditionsin form and substance approved by the Lenders in advance in writing.

 

“SubordinatedDebt Documents” means, collectively, the Subordinated Purchase Agreement,the Subordinated Indenture, the Subordinated Registration Rights Agreement, andthe Subordinated Notes.

 

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

 

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

 

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

 

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

 

“Subsidiary”of a Person means a corporation, partnership, joint venture, limited liabilitycompany or other business entity of which a majority of the shares ofsecurities or other interests having ordinary voting power for the election ofdirectors or other governing body (other than securities or interests havingsuch power only by reason of the happening of a contingency) are at the timebeneficially owned, or the management of which is otherwise controlled,directly, or indirectly through one or more intermediaries, or both, by suchPerson.  Unless otherwise specified, allreferences herein to a “Subsidiary” or to “Subsidiaries” shall refer to aSubsidiary or Subsidiaries of the Borrower.

 

“Swap Contract”means (a) any and all rate swap transactions, basis swaps, creditderivative transactions, forward rate transactions, commodity swaps, commodityoptions, forward commodity contracts, equity or equity index swaps or options,bond or bond price or bond index swaps or options or forward bond or forwardbond price or forward bond index transactions, interest rate options, forwardforeign exchange transactions, cap transactions, floor transactions, collartransactions, currency swap transactions, cross-currency rate swaptransactions, currency options, spot contracts, or any other similartransactions or any combination of any of the foregoing (including any optionsto enter into any of the foregoing), whether or not any such transaction isgoverned by or subject to any master agreement, and (b)

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

“SyntheticLease Obligation” means the monetary obligation of a Person under (a) aso-called synthetic, off-balance sheet or tax retention lease, or (b) anagreement for the use or possession of property creating obligations that donot appear on the balance sheet of such Person but which, upon the insolvencyor bankruptcy of such Person, would be characterized as the indebtedness ofsuch Person (without regard to accounting treatment).

 

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

 

“TotalOutstandings” means the aggregate Outstanding Amount of all Loans and allL/C Obligations.

 

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

 

“UnencumberedCash” means the aggregate amount of cash and Cash Equivalents of theBorrower and its Subsidiaries which is not subject to any Lien or other claimwhatsoever.

 

“UnfundedPension Liability” means the excess of a Pension Plan’s benefit liabilitiesunder Section 4001(a)(16) of ERISA, over the current value of that PensionPlan’s assets, determined in accordance with the assumptions used for fundingthe Pension Plan pursuant to Section 412 of the Code for the applicableplan year.

 

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

 

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

 

“Worldzen”means Keane Worldzen, Inc., a Delaware corporation and a Subsidiary of theBorrower.

 

**1.02****                       ****Other Interpretive Provisions**. With reference to this Agreement and each other Loan Document, unlessotherwise specified herein or in such other Loan Document:

 

(a)                                  The definitions of terms herein shallapply equally to the singular and plural forms of the terms defined.  Whenever the context may require, any pronounshall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”and “including” shall be deemed to be followed by the phrase “withoutlimitation.”  The word “will”shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) anydefinition of or reference to any agreement, instrument or other document(including any Organization Document) shall be construed as referring to suchagreement, instrument or other document as from time to time amended,supplemented or otherwise modified (subject to any restrictions on suchamendments, supplements or modifications set forth herein or in any other LoanDocument), (ii) any reference herein to any Person shall be construed toinclude such Person’s successors and assigns, (iii) the words “herein,”“hereof” and “hereunder,” and words of similar import when usedin any Loan Document, shall be construed to refer to such Loan Document in itsentirety and not to any particular provision thereof, (iv) all referencesin a Loan Document to Articles, Sections, Exhibits and Schedules shall beconstrued to refer to Articles and Sections of, and Exhibits and Schedules to,the Loan Document in which such references appear, (v) any reference toany law shall include all statutory and regulatory provisions consolidating,amending, replacing or interpreting such law and any reference to any law orregulation shall, unless otherwise specified, refer to such law or regulationas amended, modified or supplemented from time to time, and (vi) the words“asset” and “property” shall be construed to have the samemeaning and effect and to refer to any and all tangible and intangible assetsand properties, including cash, securities, accounts and contract rights.

 

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

 

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(c)                                  Section headings herein and in theother Loan Documents are included for convenience of reference only and shallnot affect the interpretation of this Agreement or any other Loan Document.

 

**1.03****                       ****Accounting Terms.**  (a) Generally.  All accounting termsnot specifically or completely defined herein shall be construed in conformitywith, and all financial data (including financial ratios and other financialcalculations) required to be submitted pursuant to this Agreement shall beprepared in conformity with, GAAP applied on a consistent basis, as in effectfrom time to time, applied in a manner consistent with that used in preparingthe Audited Financial Statements, except as otherwise specificallyprescribed herein.

 

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

 

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

 

**1.05****                       ****Times of Day.** Unless otherwise specified, all references herein to times of day shallbe references to Eastern time (daylight or standard, as applicable).

 

**1.06****                       ****Letter of Credit Amounts.** Unless otherwise specified herein, the amount of a Letter of Credit atany time shall be deemed to be the stated amount of such Letter of Credit ineffect at such time; provided, however, that with respect to anyLetter of Credit that, by its terms or the terms of any Issuer Document relatedthereto, provides for one or more automatic increases or decreases, as the casemay be, in the stated amount thereof, the amount of such Letter of Credit shallbe deemed to be the maximum stated amount of such Letter of Credit after givingeffect to all such increases or decreases, as the case may be, whether or notsuch maximum stated amount is in effect at such time.

 

**ARTICLE II.THE COMMITMENTS AND CREDIT EXTENSIONS**

** **

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

 

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not to exceed at any timeoutstanding the amount of such Lender’s Commitment; provided, however,that after giving effect to any Committed Borrowing, (i) the TotalOutstandings shall not exceed the Aggregate Commitments, and (ii) theaggregate Outstanding Amount of the Committed Loans of any Lender, plussuch Lender’s Applicable Percentage of the Outstanding Amount of all L/CObligations, plus such Lender’s Applicable Percentage of the OutstandingAmount of all Swing Line Loans shall not exceed such Lender’s Commitment.  Within the limits of each Lender’sCommitment, and subject to the other terms and conditions hereof, the Borrowermay borrow under this Section 2.01, prepay under Section 2.05,and reborrow under this Section 2.01.  Committed Loans may be Base Rate Loans or EurodollarRate Loans, as further provided herein.

 

**2.02****                       ****Borrowings, Conversions andContinuations of Committed Loans**.

 

(a)                                  Each Committed Borrowing, each conversionof Committed Loans from one Type to the other, and each continuation ofEurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice tothe Administrative Agent, which may be given by telephone.  Each such notice must be received by theAdministrative Agent not later than 11:00 a.m. (i) three BusinessDays prior to the requested date of any Borrowing of, conversion to orcontinuation of Eurodollar Rate Loans or of any conversion of Eurodollar RateLoans to Base Rate Committed Loans, and (ii) on the requested date of anyBorrowing of Base Rate Committed Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) mustbe confirmed promptly by delivery to the Administrative Agent of a writtenCommitted Loan Notice, appropriately completed and signed by a ResponsibleOfficer of the Borrower.  Each Borrowingof, conversion to or continuation of Eurodollar Rate Loans shall be in aprincipal amount of $5,000,000 or a whole multiple of $1,000,000 in excessthereof.  Except as provided in Sections2.03(c) and 2.04(c), each Borrowing of or conversion to BaseRate Committed Loans shall be in a principal amount of $500,000 or a wholemultiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify(i) whether the Borrower is requesting a Committed Borrowing, a conversionof Committed Loans from one Type to the other, or a continuation of EurodollarRate Loans, (ii) the requested date of the Borrowing, conversion orcontinuation, as the case may be (which shall be a Business Day), (iii) theprincipal amount of Committed Loans to be borrowed, converted or continued, (iv) theType of Committed Loans to be borrowed or to which existing Committed Loans areto be converted, and (v) if applicable, the duration of the InterestPeriod with respect thereto.  If theBorrower fails to specify a Type of Committed Loan in a Committed Loan Noticeor if the Borrower fails to give a timely notice requesting a conversion orcontinuation, then the applicable Committed Loans shall be made as, orconverted to, Base Rate Loans.  Any suchautomatic conversion to Base Rate Loans shall be effective as of the last dayof the Interest Period then in effect with respect to the applicable EurodollarRate Loans.  If the Borrower requests aBorrowing of, conversion to, or continuation of Eurodollar Rate Loans in anysuch Committed Loan Notice, but fails to specify an Interest Period, it will bedeemed to have specified an Interest Period of one month.

 

(b)                                 Following receipt of a Committed LoanNotice, the Administrative Agent shall promptly notify each Lender of the amountof its Applicable Percentage of the applicable Committed Loans, and if notimely notice of a conversion or continuation is provided by the Borrower, theAdministrative Agent shall notify each Lender of the details of any automaticconversion to Base Rate Loans described in the preceding subsection.  In the case of a

 

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Committed Borrowing, eachLender shall make the amount of its Committed Loan available to theAdministrative Agent in immediately available funds at the Administrative Agent’sOffice not later than 1:00 p.m. on the Business Day specified in theapplicable Committed Loan Notice.  Uponsatisfaction of the applicable conditions set forth in Section 4.02(and, if such Borrowing is the initial Credit Extension, Section 4.01),the Administrative Agent shall make all funds so received available to theBorrower in like funds as received by the Administrative Agent either by (i) creditingthe account of the Borrower on the books of Bank of America with the amount ofsuch funds or (ii) wire transfer of such funds, in each case in accordancewith instructions provided to (and reasonably acceptable to) the AdministrativeAgent by the Borrower; provided, however, that if, on the datethe Committed Loan Notice with respect to such Borrowing is given by theBorrower, there are L/C Borrowings outstanding, then the proceeds of suchBorrowing, first, shall be applied to the payment in full of any suchL/C Borrowings, and second, shall be made available to the Borrower asprovided above.

 

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

 

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

 

(e)                                  After giving effect to all CommittedBorrowings, all conversions of Committed Loans from one Type to the other, andall continuations of Committed Loans as the same Type, there shall not be morethan six Interest Periods in effect with respect to Committed Loans which areEurodollar Rate Loans.

 

**2.03****                       ****Letters of Credit**.

 

(a)                                  The Letter of Credit Commitment.

 

(i)                                     Subject to the terms and conditions setforth herein, (A) the L/C Issuer agrees, in reliance upon the agreementsof the Lenders set forth in this Section 2.03, (1) from timeto time on any Business Day during the period from the Closing Date until theLetter of Credit Expiration Date, to issue Letters of Credit for the account ofthe Borrower or its Subsidiaries, and to amend or extend Letters of Creditpreviously issued by it, in accordance with subsection (b) below, and(2) to honor drawings under the Letters of Credit; and (B) theLenders severally agree to participate in Letters of Credit issued for theaccount of the Borrower or its Subsidiaries and any drawings thereunder; providedthat after giving effect to any L/C Credit Extension with respect to any Letterof Credit, (x) the Total Outstandings shall not exceed the AggregateCommitments, (y) the aggregate Outstanding Amount of the Committed Loans of anyLender, plus such Lender’s Applicable Percentage of the OutstandingAmount of all L/C Obligations, plus such Lender’s Applicable Percentageof the Outstanding Amount of all Swing Line

 

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Loans shall notexceed such Lender’s Commitment, and (z) the Outstanding Amount of the L/CObligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuanceor amendment of a Letter of Credit shall be deemed to be a representation bythe Borrower that the L/C Credit Extension so requested complies with theconditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject tothe terms and conditions hereof, the Borrower’s ability to obtain Letters ofCredit shall be fully revolving, and accordingly the Borrower may, during theforegoing period, obtain Letters of Credit to replace Letters of Credit thathave expired or that have been drawn upon and reimbursed.  All Existing Letters of Credit shall bedeemed to have been issued pursuant hereto, and from and after the Closing Dateshall be subject to and governed by the terms and conditions hereof.

 

(ii)                                  The L/C Issuer shall not issue any Letterof Credit, if:

 

(A)                              except in the case of the ExistingLetters of Credit or as set forth in Section 2.03(b)(iii),****the expiry date of such requested Letter of Credit wouldoccur more than twelve months after the date of issuance or last extension,unless the Required Lenders have approved such expiry date; or

 

(B)                                the expiry date of such requested Letterof Credit would occur after the Letter of Credit Expiration Date, unless allthe Lenders have approved such expiry date (and, for the avoidance of doubt,all Lenders have approved the expiry date on the Existing Letters of Credit).

 

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

 

(A)                              any order, judgment or decree of anyGovernmental Authority or arbitrator shall by its terms purport to enjoin orrestrain the L/C Issuer from issuing such Letter of Credit, or any Lawapplicable to the L/C Issuer or any request or directive (whether or not havingthe force of law) from any Governmental Authority with jurisdiction over theL/C Issuer shall prohibit, or request that the L/C Issuer refrain from, theissuance of letters of credit generally or such Letter of Credit in particularor shall impose upon the L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which the L/C Issuer is nototherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the L/C Issuer any unreimbursed loss, cost or expense which was notapplicable on the Closing Date and which the L/C Issuer in good faith deemsmaterial to it;

 

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

 

(C)                                except as otherwise agreed by theAdministrative Agent and the L/C Issuer, such Letter of Credit is in an initialstated amount less than $100,000, in the case of a commercial Letter of Credit,or $500,000, in the case of a standby Letter of Credit, provided, however, thatnotwithstanding the foregoing, the L/C

 

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Issuerdoes agree to issue not more than ten (10) Letters of Credit (eithercommercial or standby or a combination) in an initial stated amount of not lessthan $50,000;

 

(D)                               such Letter of Credit is to bedenominated in a currency other than Dollars or a currency approved by theAdministrative Agent;

 

(E)                                 such Letter ofCredit contains any provisions for automatic reinstatement of the stated amountafter any drawing thereunder; or

 

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

 

(iv)                              Other than in the case of an ExistingLetter of Credit, the L/C Issuer shall not amend any Letter of Credit if theL/C Issuer would not be permitted at such time to issue such Letter of Creditin its amended form under the terms hereof.

 

(v)                                 Other than in the case of an ExistingLetter of Credit, the L/C Issuer shall be under no obligation to amend anyLetter of Credit if (A) the L/C Issuer would have no obligation at suchtime to issue such Letter of Credit in its amended form under the terms hereof,or (B) the beneficiary of such Letter of Credit does not accept theproposed amendment to such Letter of Credit.

 

(vi)                              The L/C Issuer shall act on behalf of theLenders with respect to any Letters of Credit issued by it and the documentsassociated therewith, and the L/C Issuer shall have all of the benefits andimmunities (A) provided to the Administrative Agent in Article IXwith respect to any acts taken or omissions suffered by the L/C Issuer inconnection with Letters of Credit issued by it or proposed to be issued by itand Issuer Documents pertaining to such Letters of Credit as fully as if theterm “Administrative Agent” as used in Article IX included the L/CIssuer with respect to such acts or omissions, and (B) as additionallyprovided herein with respect to the L/C Issuer.

 

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

 

(i)                                     Each Letter of Credit shall be issued oramended, as the case may be, upon the request of the Borrower delivered to theL/C Issuer (with a copy to the Administrative Agent) in the form of a Letter ofCredit Application, appropriately completed and signed by a Responsible Officerof the Borrower.  Such Letter of CreditApplication must be received by the L/C Issuer and the Administrative Agent notlater than 11:00 a.m. at least two Business Days (or such later date andtime as the Administrative Agent and the L/C Issuer may agree in a particularinstance in their sole discretion) prior to the proposed issuance date or dateof amendment, as the case may be.  In thecase of a request for an initial issuance of a Letter of Credit, such Letter ofCredit Application shall specify in form and detail satisfactory to the L/CIssuer: (A) the proposed issuance date of the requested Letter of Credit(which shall be a Business Day); (B) the amount thereof; (C) 

 

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the expiry datethereof; (D) the name and address of the beneficiary thereof; (E) thedocuments to be presented by such beneficiary in case of any drawingthereunder; (F) the full text of any certificate to be presented by suchbeneficiary in case of any drawing thereunder; and (G) such other mattersas the L/C Issuer may require.  In thecase of a request for an amendment of any outstanding Letter of Credit, suchLetter of Credit Application shall specify in form and detail satisfactory tothe L/C Issuer (A) the Letter of Credit to be amended; (B) theproposed date of amendment thereof (which shall be a Business Day); (C) thenature of the proposed amendment; and (D) such other matters as the L/CIssuer may require.  Additionally, theBorrower shall furnish to the L/C Issuer and the Administrative Agent suchother documents and information pertaining to such requested Letter of Creditissuance or amendment, including any Issuer Documents, as the L/C Issuer or theAdministrative Agent may require.

 

(ii)                                  Promptly after receipt of any Letter ofCredit Application, the L/C Issuer will confirm with the Administrative Agent(by telephone or in writing) that the Administrative Agent has received a copyof such Letter of Credit Application from the Borrower and, if not, the L/CIssuer will provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received writtennotice from any Lender, the Administrative Agent or any Loan Party, at leastone Business Day prior to the requested date of issuance or amendment of theapplicable Letter of Credit, that one or more applicable conditions containedin Article IV shall not then be satisfied, then, subject to theterms and conditions hereof, the L/C Issuer shall, on the requested date, issuea Letter of Credit for the account of the Borrower (or the applicableSubsidiary) or enter into the applicable amendment, as the case may be, in eachcase in accordance with the L/C Issuer’s usual and customary businesspractices.  Immediately upon the issuanceof each Letter of Credit, each Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the L/C Issuer a riskparticipation in such Letter of Credit in an amount equal to the product ofsuch Lender’s Applicable Percentage times the amount of such Letter ofCredit.

 

(iii)                               If the Borrower so requests in anyapplicable Letter of Credit Application, the L/C Issuer may, in its sole andabsolute discretion, agree to issue a Letter of Credit that has automaticextension provisions (each, an “Auto-Extension Letter of Credit”); providedthat any such Auto-Extension Letter of Credit must permit the L/C Issuer toprevent any such extension at least once in each twelve-month period(commencing with the date of issuance of such Letter of Credit) by giving priornotice to the beneficiary thereof not later than a day (the “Non-ExtensionNotice Date”) in each such twelve-month period to be agreed upon at thetime such Letter of Credit is issued. Unless otherwise directed by the L/C Issuer, the Borrower shall not berequired to make a specific request to the L/C Issuer for any such extension.  Once an Auto-Extension Letter of Credit has beenissued, the Lenders shall be deemed to have authorized (but may not require)the L/C Issuer to permit the extension of such Letter of Credit at any time toan expiry date not later than the Letter of Credit Expiration Date; provided,however, that the L/C Issuer shall not permit any such extension if (A) theL/C Issuer has determined that it would not be permitted, or would have noobligation, at such time to issue such Letter of Credit in its revised form (asextended) under the terms hereof (by reason of the provisions of clause (ii) or(iii) of Section 2.03(a) or otherwise), or (B) ithas received

 

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notice (which maybe by telephone or in writing) on or before the day that is five Business Daysbefore the Non-Extension Notice Date (1) from the Administrative Agentthat the Required Lenders have elected not to permit such extension or (2) fromthe Administrative Agent, any Lender or the Borrower that one or more of theapplicable conditions specified in Section 4.02 is not thensatisfied, and in each such case directing the L/C Issuer not to permit suchextension.

 

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

 

(c)                                  Drawings and Reimbursements; Funding ofParticipations.

 

(i)                                     Upon receipt from the beneficiary of anyLetter of Credit of any notice of a drawing under such Letter of Credit, theL/C Issuer shall notify the Borrower and the Administrative Agent thereof.  Not later than 11:00 a.m. on the date ofany payment by the L/C Issuer under a Letter of Credit (each such date, an “HonorDate”), the Borrower shall reimburse the L/C Issuer through theAdministrative Agent in an amount equal to the amount of such drawing.  If the Borrower fails to so reimburse the L/CIssuer by such time, the Administrative Agent shall promptly notify each Lenderof the Honor Date, the amount of the unreimbursed drawing (the “UnreimbursedAmount”), and the amount of such Lender’s Applicable Percentagethereof.  In such event, the Borrowershall be deemed to have requested a Committed Borrowing of Base Rate Loans tobe disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,without regard to the minimum and multiples specified in Section 2.02for the principal amount of Base Rate Loans, but subject to the amount of theunutilized portion of the Aggregate Commitments and the conditions set forth inSection 4.02 (other than the delivery of a Committed LoanNotice).  Any notice given by the L/CIssuer or the Administrative Agent pursuant to this Section 2.03(c)(i) maybe given by telephone if immediately confirmed in writing; provided thatthe lack of such an immediate confirmation shall not affect the conclusivenessor binding effect of such notice.

 

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

 

(iii)                               With respect to any Unreimbursed Amountthat is not fully refinanced by a Committed Borrowing of Base Rate Loansbecause the conditions set forth in Section 4.02 cannot besatisfied or for any other reason, the Borrower shall be deemed to haveincurred from the L/C Issuer an L/C Borrowing in the amount of the UnreimbursedAmount that is not so refinanced, which L/C Borrowing shall be due and payableon

 

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

 

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

 

(v)                                 Each Lender’s obligation to makeCommitted Loans or L/C Advances to reimburse the L/C Issuer for amounts drawnunder Letters of Credit, as contemplated by this Section 2.03(c),shall be absolute and unconditional and shall not be affected by anycircumstance, including (A) any setoff, counterclaim, recoupment, defenseor other right which such Lender may have against the L/C Issuer, the Borroweror any other Person for any reason whatsoever; (B) the occurrence orcontinuance of a Default, or (C) any other occurrence, event or condition,whether or not similar to any of the foregoing; provided, however,that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) issubject to the conditions set forth in Section 4.02 (other thandelivery by the Borrower of a Committed Loan Notice).  No such making of an L/C Advance shallrelieve or otherwise impair the obligation of the Borrower to reimburse the L/CIssuer for the amount of any payment made by the L/C Issuer under any Letter ofCredit, together with interest as provided herein.

 

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

 

(d)                                 Repayment of Participations.

 

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

 

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L/C Advance wasoutstanding) in the same funds as those received by the Administrative Agent.

 

(ii)                                  If any payment received by theAdministrative Agent for the account of the L/C Issuer pursuant to Section 2.03(c)(i) isrequired to be returned under any of the circumstances described in Section 10.05(including pursuant to any settlement entered into by the L/C Issuer in itsdiscretion), each Lender shall pay to the Administrative Agent for the accountof the L/C Issuer its Applicable Percentage thereof on demand of theAdministrative Agent, plus interest thereon from the date of such demand to thedate such amount is returned by such Lender, at a rate per annum equal to theFederal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive thepayment in full of the Obligations and the termination of this Agreement.

 

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

 

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

 

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

 

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

 

(iv)                              any payment by the L/C Issuer under suchLetter of Credit against presentation of a draft or certificate that does notstrictly comply with the terms of such Letter of Credit; or any payment made bythe L/C Issuer under such Letter of Credit to any Person purporting to be atrustee in bankruptcy, debtor-in-possession, assignee for the benefit ofcreditors, liquidator, receiver or other representative of or successor to anybeneficiary or any transferee of such Letter of Credit, including any arisingin connection with any proceeding under any Debtor Relief Law; or

 

(v)                                 any other circumstance or happeningwhatsoever, whether or not similar to any of the foregoing, including any othercircumstance that might otherwise constitute a defense available to, or adischarge of, the Borrower or any Subsidiary, except for circumstances orhappenings arising solely out of the gross negligence or willful misconduct ofthe L/C Issuer,.

 

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

 

(f)                                    Role of L/C Issuer.  Each Lender and the Borrower agreethat, in paying any drawing under a Letter of Credit, the L/C Issuer shall nothave any responsibility to obtain any document (other than any sight draft,certificates and documents expressly required by the Letter of Credit) or toascertain or inquire as to the validity or accuracy of any such document or theauthority of the Person executing or delivering any such document.  None of the L/C Issuer, the AdministrativeAgent, any of their respective Related Parties nor any correspondent, participantor assignee of the L/C Issuer shall be liable to any Lender for (i) anyaction taken or omitted in connection herewith at the request or with theapproval of the Lenders or the Required Lenders, as applicable; (ii) anyaction taken or omitted in the absence of bad faith, gross negligence orwillful misconduct; or (iii) the due execution, effectiveness, validity orenforceability of any document or instrument related to any Letter of Credit orIssuer Document.  The Borrower herebyassumes all risks of the acts or omissions of any beneficiary or transfereewith respect to its use of any Letter of Credit; provided, however,that this assumption is not intended to, and shall not, preclude the Borrower’spursuing such rights and remedies as it may have against the beneficiary ortransferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of theirrespective Related Parties nor any correspondent, participant or assignee ofthe L/C Issuer shall be liable or responsible for any of the matters describedin clauses (i) through (v) of Section 2.03(e); provided,however, that anything in such clauses to the contrary notwithstanding,the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may beliable to the Borrower, to the extent, but only to the extent, of any direct,as opposed to consequential or exemplary, damages suffered by the Borrowerwhich the Borrower proves were caused by the L/C Issuer’s bad faith, willfulmisconduct or gross negligence or the L/C Issuer’s willful failure to pay underany Letter of Credit after the presentation to it by the beneficiary of a sightdraft and certificate(s) strictly complying with the terms and conditions of aLetter of Credit.**** In furtherance and not in limitation of theforegoing, the L/C Issuer may accept documents that appear on their face to bein order, without responsibility for further investigation, regardless of anynotice or information to the contrary, and the L/C Issuer shall not beresponsible for the validity or sufficiency of any instrument transferring orassigning or purporting to transfer or assign a Letter of Credit or the rightsor benefits thereunder or proceeds thereof, in whole or in part, which mayprove to be invalid or ineffective for any reason.

 

(g)                                 Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C Issuerhas honored any full or partial drawing request under any Letter of Credit andsuch drawing has resulted in an L/C Borrowing, or (ii) if, as of theLetter of Credit Expiration Date, any L/C Obligation for any reason remainsoutstanding, the Borrower shall, in each case, immediately Cash Collateralizethe then Outstanding Amount of all L/C Obligations.  Sections 2.05 and 8.02(c) setforth certain additional requirements to deliver Cash Collateralhereunder.  For purposes of this Section 2.03,Section 2.05****and Section 8.02(c),“Cash Collateralize” means to pledge and deposit with or deliver to theAdministrative Agent, for the benefit of the L/C Issuer and the Lenders, ascollateral for the L/C Obligations, cash or deposit account balances

 

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pursuant to documentationin form and substance satisfactory to the Administrative Agent and the L/CIssuer (which documents are hereby consented to by the Lenders).  Derivatives of such term have correspondingmeanings.  To the extent the Borrower isrequired to Cash Collateralize the then Outstanding Amount of all L/CObligations, the Borrower shall, at the time of such requirement, grant to theAdministrative Agent, for the benefit of the L/C Issuer and the Lenders, asecurity interest in all such cash, deposit accounts and all balances thereinand all proceeds of the foregoing.  CashCollateral shall be maintained in blocked, non-interest bearing depositaccounts at Bank of America.

 

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

 

(i)                                     Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the account ofeach Lender in accordance with its Applicable Percentage a Letter of Credit fee(the “Letter of Credit Fee”)****for eachLetter of Credit equal to the Applicable Rate times the daily amountavailable to be drawn under such Letter of Credit.  For purposes of computing the daily amountavailable to be drawn under any Letter of Credit, the amount of such Letter of Creditshall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) computedon a quarterly basis in arrears and (ii) due and payable on the firstBusiness Day after the end of each March, June, September and December,commencing with the first such date to occur after the issuance of such Letterof Credit, on the Letter of Credit Expiration Date and thereafter ondemand.  If there is any change in theApplicable Rate during any quarter, the daily amount available to be drawn undereach Letter of Credit shall be computed and multiplied by the Applicable Rateseparately for each period during such quarter that such Applicable Rate was ineffect.  Notwithstanding anything to thecontrary contained herein, upon the request of the Required Lenders, while anyEvent of Default exists, all Letter of Credit Fees shall accrue at the DefaultRate.

 

(j)                                     Fronting Fee and Documentary andProcessing Charges Payable to L/C Issuer.  The Borrowershall pay directly to the L/C Issuer for its own account a fronting fee withrespect to each Letter of Credit, at the rate per annum specified in the FeeLetter, computed on the daily amount available to be drawn under such Letter ofCredit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Dayafter the end of each March, June, September and December in respect of the most recently-endedquarterly period (or portion thereof, in the case of the first payment),commencing with the first such date to occur after the issuance of such Letterof Credit, on the Letter of Credit Expiration Date and thereafter ondemand.  For purposes of computing thedaily amount available to be drawn under any Letter of Credit, the amount ofsuch Letter of Credit shall be determined in accordance with Section 1.06.  In addition, the Borrower shall pay directlyto the L/C Issuer for its own account the customary issuance, presentation,amendment and other processing fees, and other standard costs and charges, ofthe L/C Issuer relating to letters of credit as from time to time ineffect.  Such customary fees and standardcosts and charges are due and payable on demand and are nonrefundable.

 

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

 

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

 

**2.04****                       ****Swing Line Loans**.

 

(a)                                  The Swing Line. Subject to the terms and conditions set forth herein, the Swing LineLender agrees, in reliance upon the agreements of the other Lenders set forthin this Section 2.04, to make loans (each such loan, a “SwingLine Loan”) to the Borrower from time to time on any Business Day duringthe Availability Period in an aggregate amount not to exceed at any timeoutstanding the amount of the Swing Line Sublimit, notwithstanding the factthat such Swing Line Loans, when aggregated with the Applicable Percentage ofthe Outstanding Amount of Committed Loans and L/C Obligations of the Lenderacting as Swing Line Lender, may exceed the amount of such Lender’s Commitment;provided, however, that after giving effect to any Swing LineLoan, (i) the Total Outstandings shall not exceed the AggregateCommitments, and (ii) the aggregate Outstanding Amount of the CommittedLoans of any Lender, plus such Lender’s Applicable Percentage of theOutstanding Amount of all L/C Obligations, plus such Lender’s ApplicablePercentage of the Outstanding Amount of all Swing Line Loans shall not exceedsuch Lender’s Commitment, and provided, further, that theBorrower shall not use the proceeds of any Swing Line Loan to refinance anyoutstanding Swing Line Loan.  Within theforegoing limits, and subject to the other terms and conditions hereof, theBorrower may borrow under this Section 2.04, prepay under Section 2.05,and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base RateLoan.  Immediately upon the making of aSwing Line Loan, each Lender shall be deemed to, and hereby irrevocably andunconditionally agrees to, purchase from the Swing Line Lender a riskparticipation in such Swing Line Loan in an amount equal to the product of suchLender’s Applicable Percentage times the amount of such Swing Line Loan.

 

(b)                                 Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s irrevocablenotice to the Swing Line Lender and the Administrative Agent, which may begiven by telephone. Each such notice must be received by the Swing Line Lenderand the Administrative Agent not later than 1:00 p.m. on the requestedborrowing date, and shall specify (i) the amount to be borrowed, whichshall be a minimum of $500,000, and (ii) the requested borrowing date,which shall be a Business Day.  Each suchtelephonic notice must be confirmed promptly by delivery to the Swing LineLender and the Administrative Agent of a written Swing Line Loan Notice,appropriately completed and signed by a Responsible Officer of theBorrower.  Promptly after receipt by theSwing Line Lender of any telephonic Swing Line Loan Notice, the Swing LineLender will confirm with the Administrative Agent (by telephone or in writing)that the Administrative Agent has also received such Swing Line Loan Noticeand, if not, the Swing Line Lender will notify the Administrative Agent (bytelephone or in writing) of the contents thereof.  Unless the Swing Line Lender has receivednotice (by telephone or in writing) from the

 

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

 

(c)                                  Refinancing of Swing Line Loans.

 

(i)                                     The Swing Line Lender at any time in itssole and absolute discretion may request, on behalf of the Borrower (whichhereby irrevocably authorizes the Swing Line Lender to so request on itsbehalf), that each Lender make a Base Rate Committed Loan in an amount equal tosuch Lender’s Applicable Percentage of the amount of Swing Line Loans thenoutstanding.  Such request shall be madein writing (which written request shall be deemed to be a Committed Loan Noticefor purposes hereof) and in accordance with the requirements of Section 2.02,without regard to the minimum and multiples specified therein for the principalamount of Base Rate Loans, but subject to the unutilized portion of theAggregate Commitments and the conditions set forth in Section 4.02.  The Swing Line Lender shall furnish theBorrower with a copy of the applicable Committed Loan Notice promptly afterdelivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to itsApplicable Percentage of the amount specified in such Committed Loan Noticeavailable to the Administrative Agent in immediately available funds for theaccount of the Swing Line Lender at the Administrative Agent’s Office not laterthan 1:00 p.m. on the day specified in such Committed Loan Notice,whereupon, subject to Section 2.04(c)(ii), each Lender that somakes funds available shall be deemed to have made a Base Rate Committed Loanto the Borrower in such amount.  TheAdministrative Agent shall remit the funds so received to the Swing LineLender.

 

(ii)                                  If for any reason any Swing Line Loancannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i),the request for Base Rate Committed Loans submitted by the Swing Line Lender asset forth herein shall be deemed to be a request by the Swing Line Lender thateach of the Lenders fund its risk participation in the relevant Swing Line Loanand each Lender’s payment to the Administrative Agent for the account of theSwing Line Lender pursuant to Section 2.04(c)(i) shall bedeemed payment in respect of such participation.

 

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

 

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accordance withbanking industry rules on interbank compensation.  A certificate of the Swing Line Lendersubmitted to any Lender (through the Administrative Agent) with respect to anyamounts owing under this clause (iii) shall be conclusive absent manifesterror.

 

(iv)                              Each Lender’s obligation to makeCommitted Loans or to purchase and fund risk participations in Swing Line Loanspursuant to this Section 2.04(c) shall be absolute andunconditional and shall not be affected by any circumstance, including (A) anysetoff, counterclaim, recoupment, defense or other right which such Lender mayhave against the Swing Line Lender, the Borrower or any other Person for anyreason whatsoever, (B) the occurrence or continuance of a Default, or (C) anyother occurrence, event or condition, whether or not similar to any of theforegoing; provided, however, that each Lender’s obligation tomake Committed Loans pursuant to this Section 2.04(c) issubject to the conditions set forth in Section 4.02.  No such funding of risk participations shallrelieve or otherwise impair the obligation of the Borrower to repay Swing LineLoans, together with interest as provided herein.

 

(d)                                 Repayment of Participations.

 

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

 

(ii)                                  If any payment received by the Swing LineLender in respect of principal or interest on any Swing Line Loan is requiredto be returned by the Swing Line Lender under any of the circumstancesdescribed in Section 10.05 (including pursuant to any settlemententered into by the Swing Line Lender in its discretion), each Lender shall payto the Swing Line Lender its Applicable Percentage thereof on demand of theAdministrative Agent, plus interest thereon from the date of such demand to thedate such amount is returned, at a rate per annum equal to the Federal FundsRate.  The Administrative Agent will makesuch demand upon the request of the Swing Line Lender.  The obligations of the Lenders under thisclause shall survive the payment in full of the Obligations and the terminationof this Agreement.

 

(e)                                  Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrowerfor interest on the Swing Line Loans. Until each Lender funds its Base Rate Committed Loan or risk participationpursuant to this Section 2.04 to refinance such Lender’s ApplicablePercentage of any Swing Line Loan, interest in respect of such ApplicablePercentage shall be solely for the account of the Swing Line Lender.

 

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

 

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**2.05****                       ****Prepayments**.

 

(a)                                  The Borrower may, upon notice to theAdministrative Agent, at any time or from time to time voluntarily prepayCommitted Loans in whole or in part without premium or penalty (which amountsmay be reborrowed hereunder subject to the terms and conditions of thisAgreement); provided that (i) such notice must be received by theAdministrative Agent not later than 11:00 a.m. (A) three BusinessDays prior to any date of prepayment of Eurodollar Rate Loans and (B) onthe date of prepayment of Base Rate Committed Loans; (ii) any prepaymentof Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or awhole multiple of $1,000,000 in excess thereof; and (iii) any prepaymentof Base Rate Committed Loans shall be in a principal amount of $500,000 or awhole multiple of $100,000 in excess thereof or, in each case, if less, theentire principal amount thereof then outstanding.  Each such notice shall specify the date andamount of such prepayment and the Type(s) of Committed Loans to beprepaid.  The Administrative Agent willpromptly notify each Lender of its receipt of each such notice, and of theamount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, theBorrower shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein.  Any prepayment of a Eurodollar Rate Loanshall be accompanied by all accrued interest on the amount prepaid, togetherwith any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to theCommitted Loans of the Lenders in accordance with their respective ApplicablePercentages.

 

(b)                                 The Borrower may, upon notice to theSwing Line Lender (with a copy to the Administrative Agent), at any time orfrom time to time, voluntarily prepay Swing Line Loans in whole or in partwithout premium or penalty; provided that (i) such notice must bereceived by the Swing Line Lender and the Administrative Agent not later than1:00 p.m. on the date of the prepayment, and (ii) any such prepaymentshall be in a minimum principal amount of $100,000.  Each such notice shall specify the date andamount of such prepayment.  If suchnotice is given by the Borrower, the Borrower shall make such prepayment andthe payment amount specified in such notice shall be due and payable on thedate specified therein.

 

(c)                                  If for any reason the Total Outstandingsat any time exceed the Aggregate Commitments then in effect, the Borrower shallimmediately prepay Loans and/or Cash Collateralize the L/C Obligations in anaggregate amount equal to such excess; provided, however, thatthe Borrower shall not be required to Cash Collateralize the L/C Obligationspursuant to this Section 2.05(c) unless after the prepaymentin full of the Loans the Total Outstandings exceed the Aggregate Commitmentsthen in effect.

 

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

 

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Administrative Agent willpromptly notify the Lenders of any such notice of termination or reduction ofthe Aggregate Commitments.  Any reductionof the Aggregate Commitments shall be applied to the Commitment of each Lenderaccording to its Applicable Percentage. All fees accrued until the effective date of any termination of theAggregate Commitments shall be paid on the effective date of such termination.

 

**2.07****                       ****Repayment of Loans**.

 

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

 

(b)                                 To the extent that the Borrower isobligated under any Subordinated Debt Document (or any agreement, instrument ordocument refinancing or replacing any Subordinated Debt Document) in anaggregate principal amount of $50,000,000 or greater to make any principalrepayments thereunder (any such date on which the Borrower is obligated to makeany such payment being hereinafter referred to as the “Put Date”), the Borrower shall, by not later than the date which isthree months prior to the applicable Put Date, either (i) terminate allCommitments hereunder, repay to the Lenders on such date all principal andaccrued interest on the Loans, all accrued fees and other amounts owinghereunder and Cash Collateralize all LC Obligations; or (ii) demonstrateto the reasonable satisfaction of the Lender that the Borrower’s Net Liquidityis not less than $200,000,000 and, in addition, at all times from such datethrough the date on which such payment is made, such payment obligationotherwise ceases to exist or such payment obligation is deferred until a datewhich is more than three months from the applicable initial Put Date, maintainsuch Net Liquidity of not less than $200,000,000.

 

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

 

**2.08****                       ****Interest**.

 

(a)                                  Subject to the provisions of subsection (b) below,(i) each Eurodollar Rate Loan shall bear interest on the outstandingprincipal amount thereof for each Interest Period at a rate per annum equal tothe Eurodollar Rate for such Interest Period plus the Applicable Rate; (ii) eachBase Rate Committed Loan shall bear interest on the outstanding principalamount thereof from the applicable borrowing date at a rate per annum equal tothe Base Rate plus the Applicable Rate; and (iii) each Swing LineLoan shall bear interest on the outstanding principal amount thereof from theapplicable borrowing date at a rate per annum equal to the Base Rate plusthe Applicable Rate.

 

(b)                                 (i)                                     If any amount of principal of any Loan isnot paid when due (without regard to any applicable grace periods), whether atstated maturity, by acceleration or otherwise, such amount shall thereafterbear interest at a fluctuating interest rate per annum at all times equal tothe Default Rate to the fullest extent permitted by applicable Laws.

 

(ii)                                  If any amount (other than principal ofany Loan) payable by the Borrower under any Loan Document is not paid when due(without regard to any applicable grace periods), whether at stated maturity,by acceleration or otherwise, then upon the request

 

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of the RequiredLenders, such amount shall thereafter bear interest at a fluctuating interestrate per annum at all times equal to the Default Rate to the fullest extentpermitted by applicable Laws.

 

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

 

(iv)                              Accrued and unpaid interest on past dueamounts (including interest on past due interest) shall be due and payable upondemand.

 

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

 

**2.09****                       ****Fees.** In addition to certain fees described in subsections (i) and (j) ofSection 2.03:

 

(a)                                  Commitment Fee. The Borrower shall pay to the Administrative Agent for the account ofeach Lender in accordance with its Applicable Percentage, a commitment feeequal to the Applicable Rate times the actual daily amount by which theAggregate Commitments exceed the sum of (i) the Outstanding Amount ofCommitted Loans and (ii) the Outstanding Amount of L/C Obligations.  The commitment fee shall accrue at all timesduring the Availability Period, including at any time during which one or moreof the conditions in Article IV is not met, and shall be due andpayable quarterly in arrears on the last Business Day of each March, June, September andDecember, commencing with the first such date to occur after the Closing Date,and on the Maturity Date.  The commitmentfee shall be calculated quarterly in arrears, and if there is any change in theApplicable Rate during any quarter, the actual daily amount shall be computedand multiplied by the Applicable Rate separately for each period during suchquarter that such Applicable Rate was in effect.

 

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

 

(ii)                                  The Borrower shall pay to the Lenderssuch fees as shall have been separately agreed upon in writing in the amountsand at the times so specified.  Such feesshall be fully earned when paid and shall not be refundable for any reasonwhatsoever.

 

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

 

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basis of a 365-dayyear).  Interest shall accrue on eachLoan for the day on which the Loan is made, and shall not accrue on a Loan, orany portion thereof, for the day on which the Loan or such portion is paid, providedthat any Loan that is repaid on the same day on which it is made shall, subjectto Section 2.12(a), bear interest for one day.  Each determination by the AdministrativeAgent of an interest rate or fee hereunder shall be conclusive and binding forall purposes, absent manifest error.

 

**2.11****                       ****Evidence of Debt****.**

 

(a)                                  The Credit Extensions made by each Lendershall be evidenced by one or more accounts or records maintained by such Lenderand by the Administrative Agent in the ordinary course of business.  The accounts or records maintained by theAdministrative Agent and each Lender shall be conclusive absent manifest errorof the amount of the Credit Extensions made by the Lenders to the Borrower andthe interest and payments thereon.  Anyfailure to so record or any error in doing so shall not, however, limit orotherwise affect the obligation of the Borrower hereunder to pay any amountowing with respect to the Obligations. In the event of any conflict between the accounts and records maintainedby any Lender and the accounts and records of the Administrative Agent inrespect of such matters, the accounts and records of the Administrative Agentshall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent,the Borrower shall execute and deliver to such Lender (through the AdministrativeAgent) a Note, which shall evidence such Lender’s Loans in addition to suchaccounts or records.  Each Lender mayattach schedules to its Note and endorse thereon the date, Type (ifapplicable), amount and maturity of its Loans and payments with respectthereto.

 

(b)                                 In addition to the accounts and recordsreferred to in subsection (a), each Lender and the Administrative Agentshall maintain in accordance with its usual practice accounts or recordsevidencing the purchases and sales by such Lender of participations in Lettersof Credit and Swing Line Loans.  In theevent of any conflict between the accounts and records maintained by theAdministrative Agent and the accounts and records of any Lender in respect ofsuch matters, the accounts and records of the Administrative Agent shallcontrol in the absence of manifest error.

 

**2.12****                       ****Payments Generally;Administrative Agent’s Clawback****.**

 

(a)                                  General.  All paymentsto be made by the Borrower shall be made without condition or deduction for anycounterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided herein,all payments by the Borrower hereunder shall be made to the AdministrativeAgent, for the account of the respective Lenders to which such payment is owed,at the Administrative Agent’s Office in Dollars and in immediately availablefunds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptlydistribute to each Lender its Applicable Percentage (or other applicable shareas provided herein) of such payment in like funds as received by wire transferto such Lender’s Lending Office.  Allpayments received by the Administrative Agent after 2:00 p.m. shall bedeemed received on the next succeeding Business Day and any applicable interestor fee shall continue to accrue.  If anypayment to be made by the Borrower shall come due on a day other than aBusiness Day,

 

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payment shall be made onthe next following Business Day, and such extension of time shall be reflectedin computing interest or fees, as the case may be.

 

(b)                                 (i)  Funding by Lenders;Presumption by Administrative Agent. Unless the Administrative Agent shall have received notice from a Lenderprior to the proposed date of any Committed Borrowing of Eurodollar Rate Loans(or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00noon on the date of such Committed Borrowing) that such Lender will not makeavailable to the Administrative Agent such Lender’s share of such CommittedBorrowing, the Administrative Agent may assume that such Lender has made suchshare available on such date in accordance with Section 2.02 (or,in the case of a Committed Borrowing of Base Rate Loans, that such Lender hasmade such share available in accordance with and at the time required by Section 2.02)and may, in reliance upon such assumption, make available to the Borrower acorresponding amount.  In such event, ifa Lender has not in fact made its share of the applicable Committed Borrowingavailable to the Administrative Agent, then the applicable Lender and theBorrower severally agree to pay to the Administrative Agent forthwith on demandsuch corresponding amount in immediately available funds with interest thereon,for each day from and including the date such amount is made available to theBorrower to but excluding the date of payment to the Administrative Agent, at (A) inthe case of a payment to be made by such Lender, the greater of the FederalFunds Rate and a rate determined by the Administrative Agent in accordance withbanking industry rules on interbank compensation and (B) in the caseof a payment to be made by the Borrower, the interest rate applicable to BaseRate Loans.  If the Borrower and suchLender shall pay such interest to the Administrative Agent for the same or anoverlapping period, the Administrative Agent shall promptly remit to theBorrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of theapplicable Committed Borrowing to the Administrative Agent, then the amount sopaid shall constitute such Lender’s Committed Loan included in such CommittedBorrowing.  Any payment by the Borrowershall be without prejudice to any claim the Borrower may have against a Lenderthat shall have failed to make such payment to the Administrative Agent.

 

(ii)                                  Payments by Borrower; Presumptions byAdministrative Agent.  Unless the Administrative Agent shall havereceived notice from the Borrower prior to the date on which any payment is dueto the Administrative Agent for the account of the Lenders or the L/C Issuerhereunder that the Borrower will not make such payment, the AdministrativeAgent may assume that the Borrower has made such payment on such date inaccordance herewith and may, in reliance upon such assumption, distribute tothe Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not infact made such payment, then each of the Lenders or the L/C Issuer, as the casemay be, severally agrees to repay to the Administrative Agent forthwith ondemand the amount so distributed to such Lender or the L/C Issuer, inimmediately available funds with interest thereon, for each day from andincluding the date such amount is distributed to it to but excluding the dateof payment to the Administrative Agent, at the greater of the Federal FundsRate and a rate determined by the Administrative Agent in accordance withbanking industry rules on interbank compensation.

 

A notice of theAdministrative Agent to any Lender or the Borrower with respect to any amountowing under this subsection (b) shall be conclusive, absent manifesterror.

 

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

 

(d)                                 Obligations of Lenders Several.  Theobligations of the Lenders hereunder to make Committed Loans, to fundparticipations in Letters of Credit and Swing Line Loans and to make paymentspursuant to Section 10.04(c) are several and not joint.  The failure of any Lender to make anyCommitted Loan, to fund any such participation or to make any payment under Section 10.04(c) onany date required hereunder shall not relieve any other Lender of itscorresponding obligation to do so on such date, and no Lender shall beresponsible for the failure of any other Lender to so make its Committed Loan,to purchase its participation or to make its payment under Section 10.04(c).

 

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

 

**2.13****                       ****Sharing of Payments by Lenders.** If any Lender shall, by exercising any right of setoff or counterclaimor otherwise, obtain payment in respect of any principal of or interest on anyof the Committed Loans made by it, or the participations in L/C Obligations orin Swing Line Loans held by it resulting in such Lender’s receiving payment ofa proportion of the aggregate amount of such Committed Loans or participationsand accrued interest thereon greater than its prorata sharethereof as provided herein, then the Lender receiving such greater proportionshall (a) notify the Administrative Agent of such fact, and (b) purchase(for cash at face value) participations in the Committed Loans andsubparticipations in L/C Obligations and Swing Line Loans of the other Lenders,or make such other adjustments as shall be equitable, so that the benefit ofall such payments shall be shared by the Lenders ratably in accordance with theaggregate amount of principal of and accrued interest on their respectiveCommitted Loans and other amounts owing them, provided that:

 

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

 

(ii)                                  the provisions of this Section shallnot be construed to apply to (x) any payment made by the Borrower pursuant toand in accordance with the express terms of this Agreement or (y) any paymentobtained by a Lender as consideration for the assignment of or sale of a participationin any of its Committed Loans or subparticipations in L/C Obligations or SwingLine Loans to any assignee or participant, other than to the Borrower or anySubsidiary thereof (as to which the provisions of this Section shallapply).

 

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Each Loan Partyconsents to the foregoing and agrees, to the extent it may effectively do sounder applicable law, that any Lender acquiring a participation pursuant to theforegoing arrangements may exercise against such Loan Party’s rights of setoffand counterclaim with respect to such participation as fully as if such Lenderwere a direct creditor of such Loan Party in the amount of such participation.

 

**2.14****                       ****Increase in Commitments**.

 

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

 

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

 

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

 

(d)                                 Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with thisSection, the Administrative Agent and the Borrower shall determine theeffective date (the “Increase Effective Date”) and the final allocationof such increase.  The AdministrativeAgent shall promptly notify the Borrower and the Lenders of the finalallocation of such increase and the Increase Effective Date.

 

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

 

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(1) to the extentthat such representations and warranties specifically refer to an earlier date,in which case they are true and correct in all material respects as of suchearlier date (and, to the extent any such representation and/or warranty wasnot true and/or correct, that portion which was not true or correct, as thecase may be, could not reasonably be expected to have a Material AdverseEffect), (2) to the extent of changes resulting from transactionscontemplated or permitted by this Agreement and the other Loan Documents, and (3) thatfor purposes of this Section 2.15, the representations andwarranties contained in subsections (a) and (b) of Section 5.05shall be deemed to refer to the most recent statements furnished pursuant toclauses (a) and (b), respectively, of Section 6.01, and (B) noDefault exists.  The Borrower shall prepayany Committed Loans outstanding on the Increase Effective Date (and pay anyadditional amounts required pursuant to Section 3.05) to the extentnecessary to keep the outstanding Committed Loans ratable with any revisedApplicable Percentages arising from any nonratable increase in the Commitmentsunder this Section.

 

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

 

**ARTICLE III.TAXES, YIELD PROTECTION AND ILLEGALITY**

** **

**3.01****                       ****Taxes****.**

 

(a)                                  Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrowerhereunder or under any other Loan Document shall be made free and clear of andwithout reduction or withholding for any Indemnified Taxes or Other Taxes, providedthat if the Borrower shall be required by applicable law to deduct anyIndemnified Taxes (including any Other Taxes) from such payments, then (i) thesum payable shall be increased as necessary so that after making all requireddeductions (including deductions applicable to additional sums payable underthis Section) the Administrative Agent, Lender or L/C Issuer, as the case maybe, receives an amount equal to the sum it would have received had no suchdeductions been made, (ii) the Borrower shall make such deductions and (iii) theBorrower shall timely pay the full amount deducted to the relevant GovernmentalAuthority in accordance with applicable law.

 

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

 

(c)                                  Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent, each Lender andthe L/C Issuer, within 10 days after demand therefor, for the full amount ofany Indemnified Taxes or Other Taxes (including Indemnified Taxes or OtherTaxes imposed or asserted on or attributable to amounts payable under thisSection) paid by the Administrative Agent, such Lender or the L/C Issuer, asthe case may be, and any penalties, interest and reasonable expenses arisingtherefrom or with respect thereto, whether or not such Indemnified Taxes orOther Taxes were correctly or legally imposed or asserted by the relevant GovernmentalAuthority.  A certificate as to theamount of such payment or liability delivered to the Borrower by a Lender orthe L/C Issuer (with a copy to the Administrative Agent), or by the

 

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Administrative Agent onits own behalf or on behalf of a Lender or the L/C Issuer, which certificateshall contain a reasonably detailed description of the amount of such paymentsand the reason for the payments, shall be prima facie evidence of the amountsowed.

 

(d)                                 Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or OtherTaxes by the Borrower to a Governmental Authority, the Borrower shall deliverto the Administrative Agent the original or a certified copy of a receiptissued by such Governmental Authority evidencing such payment, a copy of thereturn reporting such payment or other evidence of such payment reasonablysatisfactory to the Administrative Agent.

 

(e)                                  Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction ofwithholding tax under the law of the jurisdiction in which the Borrower isresident for tax purposes, or any treaty to which such jurisdiction is a party,with respect to payments hereunder or under any other Loan Document shall deliverto the Borrower (with a copy to the Administrative Agent), at the time or timesprescribed by applicable law or reasonably requested by the Borrower or theAdministrative Agent, such properly completed and executed documentationprescribed by applicable law as will permit such payments to be made withoutwithholding or at a reduced rate of withholding.  In addition, any Lender, if requested by theBorrower or the Administrative Agent, shall deliver such other documentationprescribed by applicable law or reasonably requested by the Borrower or theAdministrative Agent as will enable the Borrower or the Administrative Agent todetermine whether or not such Lender is subject to backup withholding orinformation reporting requirements.

 

Without limitingthe generality of the foregoing, in the event that the Borrower is resident fortax purposes in the United States, any Foreign Lender shall deliver to theBorrower and the Administrative Agent (in such number of copies as shall berequested by the recipient) on or prior to the date on which such ForeignLender becomes a Lender under this Agreement (and from time to time thereafterupon the request of the Borrower or the Administrative Agent, but only if suchForeign Lender is legally entitled to do so), whichever of the following isapplicable:

 

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

 

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

 

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

 

(iv)                              any other form prescribed by applicablelaw as a basis for claiming exemption from or a reduction in United StatesFederal withholding tax duly completed

 

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together with suchsupplementary documentation as may be prescribed by applicable law to permitthe Borrower to determine the withholding or deduction required to be made.

 

(f)                                    Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C Issuer determines, inits sole discretion, that it has received a refund of any Taxes or Other Taxesas to which it has been indemnified by the Borrower or with respect to whichthe Borrower has paid additional amounts pursuant to this Section, it shall payto the Borrower an amount equal to such refund (but only to the extent ofindemnity payments made, or additional amounts paid, by the Borrower under thisSection with respect to the Taxes or Other Taxes giving rise to suchrefund), net of all reasonable out-of-pocket expenses of the AdministrativeAgent, such Lender or the L/C Issuer, as the case may be, and without interest(other than any interest paid by the relevant Governmental Authority withrespect to such refund), provided that the Borrower, upon the request ofthe Administrative Agent, such Lender or the L/C Issuer, agrees to repay theamount paid over to the Borrower (plus any penalties, interest or other chargesimposed by the relevant Governmental Authority) to the Administrative Agent,such Lender or the L/C Issuer in the event the Administrative Agent, suchLender or the L/C Issuer is required to repay such refund to such GovernmentalAuthority.  This subsection shallnot be construed to require the Administrative Agent, any Lender or the L/CIssuer to make available its tax returns (or any other information relating toits taxes that it deems confidential) to the Borrower or any other Person.

 

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

 

**3.03****                       ****Inability to Determine Rates.** If the Required Lenders determine that for any reason in connection withany request for a Eurodollar Rate Loan or a conversion to or continuationthereof that (a) Dollar deposits are not being offered to banks in theLondon interbank eurodollar market for the applicable amount and InterestPeriod of such Eurodollar Rate Loan, (b) adequate and reasonable means donot exist for determining theEurodollar Rate for any requested Interest Period with respect to aproposed Eurodollar Rate Loan , or (c) the Eurodollar Rate for any requested Interest Period with respectto a proposed Eurodollar Rate Loan does not adequately and fairly reflect thecost to such Lenders of funding such Loan, the Administrative Agent willpromptly so notify the Borrower and each Lender.  Thereafter, the

 

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

 

**3.04****                       ****Increased Costs; Reserves onEurodollar Rate Loans**.

 

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

 

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

 

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

 

(iii)                               impose on any Lender or the L/C Issuer orthe London interbank market any other condition, cost or expense affecting thisAgreement or Eurodollar Rate Loans made by such Lender or any Letter of Creditor participation therein;

 

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

 

(b)                                 Capital Requirements. If any Change in Law affecting any Lender or the L/C Issuer or anyLending Office of such Lender or such Lender’s or the L/C Issuer’s holdingcompany, if any, regarding capital requirements has the effect of reducing therate of return on such Lender’s or the L/C Issuer’s capital or on the capitalof such Lender’s or the L/C Issuer’s holding company, if any, as a consequenceof this Agreement, the Commitments of such Lender or the Loans made by, orparticipations in Letters of Credit held by, such Lender, or the Letters ofCredit issued by the L/C Issuer, to a level below that which such Lender or theL/C Issuer or such Lender’s or the L/C Issuer’s holding company could haveachieved but for such Change in Law (taking into consideration such Lender’s orthe L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’sholding company with respect to capital adequacy), then from time

 

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to time the Borrower willpay to such Lender or the L/C Issuer, as the case may be, such additionalamount or amounts as will compensate such Lender or the L/C Issuer or such Lender’sor the L/C Issuer’s holding company for any such reduction suffered.

 

(c)                                  Certificates for Reimbursement. A reasonably detailed certificate of a Lender or the L/C Issuer settingforth the amount or amounts necessary to compensate such Lender or the L/CIssuer or its holding company, as the case may be, as specified in subsection (a) or(b) of this Section and delivered to the Borrower shall be primafacie evidence of the amounts owed.  TheBorrower shall pay such Lender or the L/C Issuer, as the case may be, theamount shown as due on any such certificate within 10 Business Days afterreceipt thereof.

 

(d)                                 Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer to demandcompensation pursuant to the foregoing provisions of this Section shallnot constitute a waiver of such Lender’s or the L/C Issuer’s right to demandsuch compensation, provided that the Borrower shall not be required tocompensate a Lender or the L/C Issuer pursuant to the foregoing provisions ofthis Section for any increased costs or reduced rates incurred orreductions suffered more than 90 days prior to the date of the Change in Lawgiving rise to such increased costs or reductions and of such Lender’s or theL/C Issuer’s intention to claim compensation therefor (except that, if theChange in Law giving rise to such increased costs or reductions is retroactive,then the 90 day period referred to above shall be extended to include theperiod of retroactive effect thereof).

 

(e)                                  Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long as such Lender shall berequired to maintain reserves with respect to liabilities or assets consistingof or including Eurocurrency funds or deposits (currently known as “Eurocurrencyliabilities”), additional interest on the unpaid principal amount of eachEurodollar Rate Loan equal to the actual costs of such reserves allocated tosuch Loan by such Lender (as determined by such Lender in good faith, whichdetermination shall be conclusive absent manifest error), which shall be dueand payable on each date on which interest is payable on such Loan, providedthe Borrower shall have received at least 10 Business Days’ prior notice (witha copy to the Administrative Agent) of such additional interest from suchLender.  If a Lender fails to give notice10 Business Days prior to the relevant Interest Payment Date, such additionalinterest shall be due and payable 10 Business Days from receipt of such notice.

 

**3.05****                       ****Compensation for Losses.** Upon demand of any Lender (with a copy to the Administrative Agent) fromtime to time, the Borrower shall promptly compensate such Lender for and holdsuch Lender harmless from any loss, cost or expense incurred by it as a resultof:

 

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

 

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

 

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

 

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

 

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

 

**3.06****                       ****Mitigation Obligations;Replacement of Lenders**.

 

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

 

(b)                                 Replacement of Lenders. If any Lender requests compensation under Section 3.04, orif the Borrower is required to pay any additional amount to any Lender or anyGovernmental Authority for the account of any Lender pursuant to Section 3.01or Section 3.02, the Borrower may replace such Lender in accordancewith Section 10.13.

 

**3.07****                       ****Survival.** All of the Borrower’s obligations under this Article IIIshall survive termination of the Aggregate Commitments and repayment of allother Obligations hereunder.

 

**ARTICLE IV.CONDITIONS PRECEDENT TO Credit Extensions**

** **

**4.01****                       ****Conditions of Initial CreditExtension.**  The obligation of the L/C Issuer and eachLender to make its initial Credit Extension hereunder is subject tosatisfaction of the following conditions precedent:

 

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

 

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the case of certificatesof governmental officials, a recent date before the Closing Date) and each inform and substance satisfactory to the Administrative Agent and each of theLenders:

 

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

 

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

 

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

 

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

 

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

 

(vi)                              a certificate signed by a ResponsibleOfficer of the Borrower certifying (A) that the conditions specified in Sections4.02(a) and (b) have been satisfied, (B) that therehas been no event or circumstance since the date of the Audited FinancialStatements that has had or could be reasonably expected to have, eitherindividually or in the aggregate, a Material Adverse Effect; and (C) acalculation of the Senior Leverage Ratio as of the last day of the fiscalquarter of the Borrower most recently ended prior to the Closing Date;

 

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

 

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

 

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

 

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

 

(c)                                  Unless waived by the AdministrativeAgent, the Borrower shall have paid all fees, charges and disbursements ofcounsel to the Administrative Agent to the extent invoiced prior to or on theClosing Date, plus such additional amounts of such fees, charges anddisbursements as shall constitute its reasonable estimate of such fees, chargesand disbursements incurred or to be incurred by it through the closingproceedings (provided that such estimate shall not thereafter preclude a finalsettling of accounts between the Borrower and the Administrative Agent).

 

Without limitingthe generality of the provisions of Section 9.04, for purposes ofdetermining compliance with the conditions specified in this Section 4.01,each Lender that has signed this Agreement shall be deemed to have consentedto, approved or accepted or to be satisfied with, each document or other matterrequired thereunder to be consented to or approved by or acceptable orsatisfactory to a Lender unless the Administrative Agent shall have receivednotice from such Lender prior to the proposed Closing Date specifying itsobjection thereto.

 

**4.02****                       ****Conditions to all CreditExtensions.**  The obligation of each Lender to honor anyRequest for Credit Extension (other than a Committed Loan Notice requestingonly a conversion of Committed Loans to the other Type, or a continuation ofEurodollar Rate Loans) is subject to the following conditions precedent:

 

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

 

(b)                                 No Default shall exist, or would resultfrom such proposed Credit Extension or from the application of the proceedsthereof.

 

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

 

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Each Request forCredit Extension (other than a Committed Loan Notice requesting only aconversion of Committed Loans to the other Type or a continuation of EurodollarRate Loans) submitted by the Borrower shall be deemed to be a representationand warranty that the conditions specified in Sections 4.02(a) and (b) havebeen satisfied on and as of the date of the applicable Credit Extension.

 

**ARTICLE V.REPRESENTATIONS AND WARRANTIES**

** **

The Borrowerrepresents and warrants to the Administrative Agent and the Lenders that:

 

**5.01****                       ****Existence, Qualification andPower; Compliance with Laws.**  Each LoanParty and each Subsidiary thereof (a) is duly organized or formed, validlyexisting and in good standing under the Laws of the jurisdiction of itsincorporation or organization, (b) has all requisite power and authorityand all requisite governmental licenses, authorizations, consents and approvalsto (i) own or lease its assets and carry on its business and (ii) execute,deliver and perform its obligations under the Loan Documents to which it is aparty, (c) is duly qualified and is licensed and in good standing underthe Laws of each jurisdiction where its ownership, lease or operation ofproperties or the conduct of its business requires such qualification orlicense, and (d) is in compliance with all Laws; except in each casereferred to in clause (b)(i), (c) or (d), to the extent that failure to doso could not reasonably be expected to have a Material Adverse Effect.

 

**5.02****                       ****Authorization; No Contravention.** The execution, delivery and performance by each Loan Party of each LoanDocument to which such Person is party, have been duly authorized by allnecessary corporate or other organizational action, and do not and will not (a) contravenethe terms of any of such Person’s Organization Documents; (b) conflictwith or result in any breach or contravention of, or the creation of any Lienunder, or require any payment to be made under (i) any ContractualObligation to which such Person is a party or affecting such Person or theproperties of such Person or any of its Subsidiaries or (ii) any order,injunction, writ or decree of any Governmental Authority or any arbitral awardto which such Person or its property is subject unless such conflict orcontravention could not reasonably be expected to have a Material AdverseEffect; or (c) violate any Law, except where such violation could notreasonably be expected to have a Material Adverse Effect.  Each Loan Party and each Subsidiary thereofis in compliance with all Contractual Obligations referred to in clause (b)(i),except to the extent that failure to do so could not reasonably be expected tohave a Material Adverse Effect.

 

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

 

**5.04****                       ****Binding Effect.** This Agreement has been, and each other Loan Document, when deliveredhereunder, will have been, duly executed and delivered by each Loan Party thatis party thereto.  This Agreementconstitutes, and each other Loan Document when so delivered

 

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

 

**5.05****                       ****Financial Statements; No MaterialAdverse Effect; No Internal Control Event; Solvency**.

 

(a)                                  The Audited Financial Statements (i) wereprepared in accordance with GAAP consistently applied throughout the periodcovered thereby, except as otherwise expressly noted therein; (ii) fairlypresent the financial condition of the Borrower and its Subsidiaries as of thedate thereof and their results of operations for the period covered thereby inaccordance with GAAP consistently applied throughout the period coveredthereby, except as otherwise expressly noted therein; and (iii) show allmaterial indebtedness and other liabilities, direct or contingent, of theBorrower and its Subsidiaries as of the date thereof, including liabilities fortaxes, material commitments and Indebtedness.

 

(b)                                 The unaudited consolidated balance sheetof the Borrower and its Subsidiaries dated June 30, 2005, and the relatedconsolidated****statements of incomeor operations, shareholders’ equity and cash flows for the fiscal quarter endedon that date (i) were prepared in accordance with GAAP consistentlyapplied throughout the period covered thereby, except as otherwise expresslynoted therein, and (ii) fairly present the financial condition of theBorrower and its Subsidiaries as of the date thereof and their results ofoperations for the period covered thereby, subject, in the case of clauses (i) and(ii), to the absence of footnotes and to normal year-end audit adjustments.

 

(c)                                  Since the date of the Audited FinancialStatements, there has been no event or circumstance, either individually or inthe aggregate, that has had or could reasonably be expected to have a MaterialAdverse Effect.

 

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

 

(e)                                  The consolidated pro forma balance sheetof the Borrower and its Subsidiaries as at June 30, 2005, and the relatedconsolidated pro forma statements of income and cash flows of the Borrower andits Subsidiaries for the 2005 through 2010 fiscal years, certified by the chieffinancial officer of the Borrower, copies of which have been furnished to theAdministrative Agent, fairly present the consolidated pro forma financialcondition of the Borrower and its Subsidiaries as at such date and theconsolidated pro forma results of operations of the Borrower and itsSubsidiaries for the period ended on such date, all in accordance with GAAP.

 

(f)                                    The consolidated forecasted balance sheetand statements of income and cash flows of the Borrower and its Subsidiariesdelivered pursuant to Section 6.01(c) were prepared in goodfaith on the basis of the assumptions stated therein, which assumptions werefair in light of the conditions existing at the time of delivery of suchforecasts, and represented, at the time of delivery, the Borrower’s reasonableestimate of the Borrower’s future financial performance.

 

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

 

**5.06****                       ****Litigation.**  There are no actions, suits,proceedings, governmental investigations, claims or disputes pending or, to theknowledge of the Borrower after due and diligent investigation, threatened orcontemplated, at law, in equity, in arbitration or before any GovernmentalAuthority, by or against the Borrower or any of its Subsidiaries or against anyof their properties or revenues that (a) questions the validity of thisAgreement or any other Loan Document, or any of the transactions contemplatedhereby, or (b) except as specifically disclosed in Schedule 5.06,either individually or in the aggregate could reasonably be expected to have aMaterial Adverse Effect.

 

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

 

**5.08****                       ****Ownership of Property; Liens.** Each of the Borrower and each Subsidiary has good record and marketabletitle in fee simple to, or valid leasehold interests in, all real propertynecessary or used in the ordinary conduct of its business, except for suchdefects in title as could not, individually or in the aggregate, reasonably beexpected to have a Material Adverse Effect. The property of the Borrower and its Subsidiaries is subject to noLiens, other than Liens permitted by Section 7.01.

 

**5.09****                       ****Environmental Compliance.** The Borrower and its Subsidiaries conduct in the ordinary course ofbusiness a review of the effect of existing Environmental Laws and claims allegingpotential liability or responsibility for violation of any Environmental Law ontheir respective businesses, operations and properties, and as a result thereofthe Borrower has reasonably concluded that such Environmental Laws and claimscould not, individually or in the aggregate, reasonably be expected to have aMaterial Adverse Effect.

 

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

 

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**5.11****                       ****Taxes.** The Borrower and its Subsidiaries have filed all Federal, state andother tax returns and reports required to be filed, and have paid all Federal,state and other taxes, assessments, fees and other governmental charges leviedor imposed upon them or their properties, income or assets otherwise due andpayable, except those which are being contested in good faith by appropriateproceedings diligently conducted and for which adequate reserves have beenprovided in accordance with GAAP or where the failure to file any such returnsor reports, or pay any such taxes, assessments, fees or charges could notreasonably be expected to have a Material Adverse Effect.  There is no proposed tax assessment againstthe Borrower or any Subsidiary that would, if made, have a Material AdverseEffect.

 

**5.12****                       ****ERISA Compliance**.

 

(a)                                  Each Plan is in compliance in allmaterial respects with the applicable provisions of ERISA, the Code and otherFederal or state Laws.  Each Plan that isintended to qualify under Section 401(a) of the Code has received afavorable determination letter from the IRS or an application for such a letteris currently being processed by the IRS with respect thereto and, to the bestknowledge of the Borrower, nothing has occurred which would prevent, or causethe loss of, such qualification.  TheBorrower and each ERISA Affiliate have made all required contributions to eachPlan subject to Section 412 of the Code, and no application for a fundingwaiver or an extension of any amortization period pursuant to Section 412of the Code has been made with respect to any Plan.

 

(b)                                 There are no pending or, to the bestknowledge of the Borrower, threatened claims, actions or lawsuits, or action byany Governmental Authority, with respect to any Plan that could reasonably beexpected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciaryresponsibility rules with respect to any Plan that has resulted or couldreasonably be expected to result in a Material Adverse Effect.

 

(c)                                  Except as could not reasonably beexpected to have a Material Adverse Effect, (i) no ERISA Event hasoccurred or is reasonably expected to occur; (ii) no Pension Plan has anyUnfunded Pension Liability; (iii) neither the Borrower nor any ERISAAffiliate has incurred, or reasonably expects to incur, any liability underTitle IV of ERISA with respect to any Pension Plan (other than premiums due andnot delinquent under Section 4007 of ERISA); (iv) neither theBorrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,any liability (and no event has occurred which, with the giving of notice underSection 4219 of ERISA, would result in such liability) under Sections 4201or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither theBorrower nor any ERISA Affiliate has engaged in a transaction that couldreasonably likely be subject to Sections 4069 or 4212(c) of ERISA.

 

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

 

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outstanding EquityInterests in the Borrower have been validly issued and are fully paid andnonassessable.

 

**5.14****                       ****Margin Regulations; Investment CompanyAct; Public Utility Holding Company Act**.

 

(a)                                  The Borrower is not engaged and will notengage, principally or as one of its important activities, in the business ofpurchasing or carrying margin stock (within the meaning of Regulation U issuedby the FRB), or extending credit for the purpose of purchasing or carryingmargin stock.

 

(b)                                 None of the Borrower, any PersonControlling the Borrower (if any), or any Subsidiary is a “holding company,” ora “subsidiary company” of a “holding company,” or an “affiliate” of a “holdingcompany” or of a “subsidiary company” of a “holding company,” within themeaning of the Public Utility Holding Company Act of 1935.  None of the Borrower or any Subsidiary is oris required to be registered as an “investment company” under the InvestmentCompany Act of 1940.

 

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

 

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

 

**5.17****                       ****Intellectual Property; Licenses,Etc.**  The Borrower and its Subsidiaries own, orpossess the right to use, all of the trademarks, service marks, trade names,copyrights, patents, patent rights, franchises, licenses and other intellectualproperty rights (collectively, “IP Rights”) that are reasonablynecessary for the operation of their respective businesses, without knownconflict with the rights of any other Person.

 

**5.18****                       ****Status of Loan as Senior Debt.** All Indebtedness of the Borrower and each of its Subsidiaries to theLenders and the Administrative Agent in respect of the Loans and the L/CObligations constitutes “Senior Indebtedness” or “Senior Debt” (or theanalogous term used therein) under the terms of the Subordinated Debt Documentsor of any other instrument evidencing or pursuant to which there is issuedIndebtedness which purports to be Subordinated Debt of the Borrower or anySubsidiary.

 

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**5.19****                       ****Subordinated Debt Documents.** Each of the representations and warranties made by the Borrower in anyof the Subordinated Debt Documents was true and correct in all materialrespects on the date such representations and warranties were made and/ordeemed to have been made.

 

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

 

**ARTICLE VI.AFFIRMATIVE COVENANTS**

** **

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

 

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

 

(a)                                  as soon as available, but in any eventwithin 90 days after the end of each fiscal year of the Borrower, aconsolidated balance sheet of the Borrower and its Subsidiaries as at the endof such fiscal year, and the related consolidated statements of income oroperations, shareholders’ equity and cash flows for such fiscal year, settingforth in each case in comparative form the figures for the previous fiscalyear, all in reasonable detail and prepared in accordance with GAAP, auditedand accompanied by (i) a report and opinion of a Registered PublicAccounting Firm of nationally recognized standing reasonably acceptable to theRequired Lenders, which report and opinion shall be prepared in accordance withgenerally accepted auditing standards and applicable Securities Laws and shallnot be subject to any “going concern” or like qualification or exception or anyqualification or exception as to the scope of such audit and (ii) anattestation report of such Registered Public Accounting Firm as to the Borrower’sinternal controls pursuant to Section 404 of Sarbanes-Oxley;

 

(b)                                 as soon as available, but in any eventwithin 45 days after the end of each fiscal quarter of each fiscal year of theBorrower, a consolidated balance sheet of the Borrower and its Subsidiaries asat the end of such fiscal quarter, and the related consolidated statements ofincome or operations, shareholders’ equity and cash flows for such fiscalquarter and for the portion of the Borrower’s fiscal year then ended, settingforth in each case in comparative form the figures for the corresponding fiscalquarter of the previous fiscal year and the corresponding portion of theprevious fiscal year, all in reasonable detail and prepared in accordance withGAAP (subject only to normal year-end audit adjustments and the absence offootnotes), certified by a Responsible Officer of the Borrower as fairlypresenting the financial condition, results of operations, shareholders’ equityand cash flows of the Borrower and its Subsidiaries in

 

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

 

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

 

As to any informationcontained in materials furnished pursuant to Section 6.02(d), theBorrower shall not be separately required to furnish such information underclause (a) or (b) above, but the foregoing shall not be in derogationof the obligation of the Borrower to furnish the information and materialsdescribed in clauses (a) and (b) above at the times specifiedtherein.

 

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

 

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

 

(b)                                 promptly, such additional informationregarding the business or financial affairs of the Borrower or any Subsidiary,or compliance with the terms of the Loan Documents, as the Administrative Agentor any Lender may from time to time reasonably request;

 

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

 

(d)                                 promptly after the furnishing thereof,copies of any statement or report furnished to any holder of debt securities ofany Loan Party or any Subsidiary thereof pursuant to the terms of anyindenture, loan or credit or similar agreement and not otherwise required to befurnished to the Lenders pursuant to Section 6.01 or any other clause ofthis Section 6.02; and

 

(e)                                  promptly, and in any event within fiveBusiness Days after receipt thereof by any Loan Party or any Subsidiarythereof, copies of each notice or other correspondence received from the SEC(or comparable agency in any applicable non-U.S. jurisdiction) concerning anyinvestigation or possible investigation or other inquiry by such agencyregarding financial or other operational results of any Loan Party or anySubsidiary thereof.

 

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

 

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

 

The Borrowerhereby acknowledges that (a) the Administrative Agent and/or the Arrangerwill make available to the Lenders and the L/C Issuer materials and/orinformation provided by or on behalf of the Borrower hereunder (collectively, “BorrowerMaterials”) by posting the Borrower Materials on IntraLinks or anothersimilar electronic system (the “Platform”) and (b) certain of theLenders may be “public-side” Lenders (*i.e.,*Lenders that do not wish to receive material non-public information withrespect to the Borrower or its securities) (each, a “Public Lender”).  The Borrower hereby agrees that (w) allBorrower Materials that are to be made available to Public Lenders shall beclearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean thatthe word “PUBLIC” shall appear prominently on the first page thereof; (x)by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to haveauthorized the Administrative Agent, the Arranger, the L/C Issuer and theLenders to treat such Borrower Materials as not containing any materialnon-public information with respect to the Borrower or its securities forpurposes of United States Federal and state securities laws (provided, however,that to the extent such Borrower Materials constitute Information, they shallbe treated as set forth in Section 10.07); (y) all BorrowerMaterials marked “PUBLIC” are permitted to be made available through a portionof the Platform designated “Public Investor;” and (z) the Administrative Agentand the Arranger shall be entitled to treat any Borrower Materials that are notmarked “PUBLIC” as being suitable only for posting on a portion of the Platformnot designated “Public Investor.”

 

**6.03****                       ****Notices.** Promptly notify the Administrative Agent:

 

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

 

(b)                                 of any matter that has resulted or couldreasonably be expected to result in a Material Adverse Effect, including (i) breachor non-performance of, or any default under, a Contractual Obligation of theBorrower or any Subsidiary; (ii) any litigation, investigation, proceedingor suspension between the Borrower or any Subsidiary and any GovernmentalAuthority; or (iii) the commencement of, or any material adversedevelopment in, any litigation or proceeding affecting the Borrower or anySubsidiary, including pursuant to any applicable Environmental Laws;

 

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(c)                                  of the occurrence of any ERISA Event;

 

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

 

(e)                                  of the occurrence of any Internal ControlEvent.

 

Each noticepursuant to this Section shall be accompanied by a statement of aResponsible Officer of the Borrower setting forth details of the occurrencereferred to therein and stating what action the Borrower has taken and proposesto take with respect thereto.  Eachnotice pursuant to Section 6.03(a) shall describe withparticularity any and all provisions of this Agreement and any other LoanDocument that have been breached.

 

**6.04****                       ****Payment of Obligations.** Pay and discharge as the same shall become due and payable, all itsobligations and liabilities, including (a) all tax liabilities,assessments and governmental charges or levies upon it or its properties orassets, unless the same are being contested in good faith by appropriateproceedings diligently conducted and adequate reserves in accordance with GAAPare being maintained by the Borrower or such Subsidiary; (b) all lawfulclaims which, if unpaid, would by law become a Lien upon its property (otherthan Liens permitted hereunder); and (c) all Indebtedness, as and when dueand payable, but subject to any subordination provisions contained in anyinstrument or agreement evidencing such Indebtedness.

 

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

 

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

 

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

 

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other Persons****and providing for not less than 30 days’ prior notice tothe Administrative Agent of termination, lapse or cancellation of suchinsurance.

 

**6.08****                       ****Compliance with Laws.** Comply in all material respects with the requirements of all Laws andall orders, writs, injunctions and decrees applicable to it, except in suchinstances in which (a) such requirement of Law or order, writ, injunctionor decree is being contested in good faith by appropriate proceedingsdiligently conducted; or (b) the failure to comply therewith could notreasonably be expected to have a Material Adverse Effect.

 

**6.09****                       ****Books and Records.**  (a) Maintain proper books of record and account, in which full, true and correctentries in conformity with GAAP consistently applied shall be made of allfinancial transactions and matters involving the assets and business of theBorrower or such Subsidiary, as the case may be; and (b) maintain suchbooks of record and account in material conformity with all applicablerequirements of any Governmental Authority having regulatory jurisdiction overthe Borrower or such Subsidiary, as the case may be.

 

**6.10****                       ****Inspection Rights.** Permit representatives and independent contractors of the AdministrativeAgent and each Lender to visit and inspect any of its properties, to examineits corporate, financial and operating records, and make copies thereof orabstracts therefrom, and to discuss its affairs, finances and accounts with itsdirectors, officers, and independent public accountants, all at such reasonabletimes during normal business hours, upon reasonable advance notice to theBorrower and, so long as no Default or Event of Default has occurred and iscontinuing, not more than once each calendar year for the Administrative Agentand the Lender, which annual visit shall be coordinated through and by theAdministrative Agent and which annual visit shall be at the expense of theLenders participating in such visit; provided, however, that whenan Event of Default exists the Administrative Agent or any Lender (or any oftheir respective representatives or independent contractors) may do any of theforegoing at the expense of the Borrower at any time during normal businesshours and without advance notice.

 

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

 

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

 

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

 

**6.13****                       ****New Subsidiaries.** If, after the Closing Date, the Borrower or any of its Subsidiariescreates or acquires, either directly or indirectly, any Subsidiary, it willimmediately notify the Administrative Agent of such creation or acquisition, asthe case may be, and provide the Administrative Agent and the Lenders with anupdated Schedule 5.13 hereto and, tothe extent required by this Agreement, take all other action required by Section 6.12 hereof.

 

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

 

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

 

**ARTICLE VII.NEGATIVE COVENANTS**

** **

So long as anyLender shall have any Commitment hereunder, any Loan or other Obligationhereunder shall remain unpaid or unsatisfied, or any Letter of Credit shallremain outstanding, the Borrower shall not, nor shall it permit any Subsidiaryto, directly or indirectly:

 

**7.01****                       ****Liens.** Create, incur, assume or suffer to exist any Lien upon any of itsproperty, assets or revenues, whether now owned or hereafter acquired, otherthan the following:

 

(a)                                  Liens pursuant to any Loan Document;

 

(b)                                 Liens existing on the date hereof andlisted on Schedule 7.01 and any renewals or extensions thereof, providedthat (i) the property covered thereby is not materially changed, (ii) theprincipal amount secured or benefited thereby is not increased, and (iii) anyrenewal or extension of the obligations secured or benefited thereby ispermitted by Section 7.03(b);

 

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

 

(d)                                 carriers’, warehousemen’s, mechanics’,materialmen’s, repairmen’s or other like Liens arising in the ordinary courseof business in existence less than 120 days from the date of creation thereofin respect of obligations which are not overdue or which are being contested ingood faith and by appropriate proceedings diligently conducted, if adequatereserves with respect thereto are maintained on the books of the applicablePerson (provided such Lien shall no longer be permitted immediately upon thecommencement of proceedings to foreclose any Lien if such Lien secures anymaterial amount, or the foreclosure of such Lien could reasonably be expectedto have a Material Adverse Effect);

 

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

 

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

 

(g)                                 easements, rights-of-way, zoningrestrictions and other similar encumbrances affecting real property providedthat none of such Liens (A) interferes materially with the use of theproperty affected in the ordinary conduct of the business of the Borrower andits Subsidiaries, and (B) individually or in the aggregate have a MaterialAdverse Effect;

 

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

 

(i)                                     Liens securing Indebtedness permittedunder Section 7.03(e); provided that (i) such Liens donot at any time encumber any property other than the property financed by suchIndebtedness and (ii) the Indebtedness secured thereby does not exceed thecost or fair market value, whichever is lower, of the property being acquiredon the date of acquisition;

 

(j)                                     Liens in favor of the Borrower on all orpart of the assets of Subsidiaries of the Borrower securing Indebtedness owingby Subsidiaries of the Borrower to the Borrower; and

 

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

 

**7.02****                       ****Investments.** Make any Investments, except:

 

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

 

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

 

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

 

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

 

(e)                                  Investments in Subsidiaries which are notGuarantors hereunder, provided that the aggregate amount of all suchInvestments made pursuant to this Section 7.02(e) plus anyInvestments made in such Subsidiaries pursuant to Section 7.03(h) shallnot exceed $35,000,000;

 

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

 

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

 

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

 

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

 

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

 

(k)                                  Guarantees permitted by Section 7.03;and

 

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

 

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

 

(a)                                  Indebtedness under the Loan Documents;

 

(b)                                 Indebtedness outstanding on the datehereof and listed on Schedule 7.03 and any refinancings,refundings, renewals or extensions thereof; provided that (i) the principal amount of suchIndebtedness is not increased at the time of such refinancing, refunding, renewalor extension except by an amount equal to a reasonable premium or otherreasonable amount paid, and fees and expenses reasonably incurred, inconnection with such refinancing and by an amount equal to any existingcommitments unutilized thereunder and (ii) theterms relating to

 

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

 

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

 

(d)                                 obligations (contingent or otherwise) ofthe Borrower or any Subsidiary existing or arising under any Swap Contract, providedthat (i) such obligations are (or were) entered into by such Person in theordinary course of business for the purpose of directly mitigating risksassociated with liabilities, commitments, investments, assets, or property heldor reasonably anticipated by such Person, or changes in the value of securitiesissued by such Person, and not for purposes of speculation or taking a “marketview;” and (ii) such Swap Contract does not contain any provisionexonerating the non-defaulting party from its obligation to make payments onoutstanding transactions to the defaulting party;

 

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

 

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

 

(g)                                 Indebtedness of the Borrower or anyGuarantor to any Subsidiary which is not a Guarantor consisting of anintercompany loan so long as (i) the aggregate amount of all suchIndebtedness under this Section 7.03(g) doesnot exceed $10,000,000 at any time; and (ii) the payment obligationsthereunder are subordinated to the prior payment in full in cash of allObligations pursuant to subordination terms acceptable to the AdministrativeAgent;

 

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

 

(i)                                     third party Indebtedness of the Borroweror any Subsidiary incurred or assumed in connection with any PermittedAcquisition (excluding Indebtedness consisting of earnout arrangements) so longas the aggregate amount of all such Indebtedness under this Section 7.03(i) does not exceed$10,000,000 at any time (and, for the avoidance of doubt, the parties heretohereby acknowledge and agree that Indebtedness of a Person which was incurredby a

 

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

 

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

 

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

 

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

 

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

 

**7.04****                       ****Fundamental Changes.** Merge, dissolve, liquidate, consolidate with or into another Person, oragree to or effect any asset acquisition or stock acquisition (other than theacquisition of assets in the ordinary course of business consistent with pastpractices) or Dispose of (whether in one transaction or in a series oftransactions) all or substantially all of its assets (whether now owned orhereafter acquired) to or in favor of any Person, except that, so long as noDefault exists or would result therefrom:

 

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

 

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

 

(c)                                  the Borrower or any Subsidiary may effectany asset or stock acquisition by the of Persons (or, in the case of an assetacquisition, assets of a Person) in the same or similar line of business as theBorrower (a “Permitted Acquisition”) solong as (i) the Borrower has provided the Administrative Agent with priorwritten notice of such acquisition, which notice shall include a reasonablydetailed description of such Permitted Acquisition; (ii) the board ofdirectors and (if required by applicable law) the shareholders, or theequivalent thereof, of each of the Borrower or the applicable Subsidiary and ofthe Person to be acquired has approved such merger, consolidation oracquisition; (iii) any Indebtedness incurred or assumed in connection withsuch

 

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

 

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

 

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(a)                                  Dispositions of obsolete or worn outproperty, whether now owned or hereafter acquired, in the ordinary course ofbusiness;

 

(b)                                 Dispositions of inventory in the ordinarycourse of business;

 

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

 

(d)                                 Dispositions of property by anySubsidiary to the Borrower or to a wholly-owned Subsidiary; providedthat if the transferor of such property is a Guarantor, the transferee thereofmust either be the Borrower or a Guarantor;

 

(e)                                  Dispositions permitted by Section 7.04;

 

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

 

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

 

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

 

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

 

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

 

(a)                                  each Subsidiary may make RestrictedPayments to the Borrower, the Guarantors and any other Person that owns anEquity Interest in such Subsidiary, ratably according to their respectiveholdings of the type of Equity Interest in respect of which such RestrictedPayment is being made;

 

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

 

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

 

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(d)                                 the Borrower or any of its Subsidiariesmay repurchase the Equity Interests of the Borrower, provided (i) noDefault or Event of Default has occurred and is continuing or would occur as aresult thereof and (ii) the Borrower has demonstrated to the reasonablesatisfaction of the Administrative Agent that the Senior Leverage Ratio(calculated on a pro forma basis) both before and after giving effect to suchrepurchase is not greater than 1.50:1.00.

 

**7.07****                       ****Change in Nature of Business.** Engage in any material line of business substantially different fromthose lines of business conducted by the Borrower and its Subsidiaries on thedate hereof or any business substantially related or incidental thereto.

 

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

 

**7.09****                       ****Burdensome Agreements.** Enter into any Contractual Obligation (other than this Agreement or anyother Loan Document) that (a) limits the ability (i) of any Subsidiaryto make Restricted Payments to the Borrower or any Guarantor or to otherwisetransfer property to the Borrower or any Guarantor, (ii) of any Subsidiaryto Guarantee the Indebtedness of the Borrower or (iii) of the Borrower orany Subsidiary to create, incur, assume or suffer to exist Liens on property ofsuch Person; provided, however, that this clause (iii) shallnot prohibit (1) any negative pledge incurred or provided in favor of anyholder of Indebtedness permitted under Section 7.03(e) solelyto the extent any such negative pledge relates to the property financed by orthe subject of such Indebtedness or (2) customary anti-assignment provisions contained in leases and licensingagreements entered into by the Borrower or such Subsidiary in the ordinarycourse of its business; or (b) requires the grant of a Lien tosecure an obligation of such Person if a Lien is granted to secure anotherobligation of such Person.

 

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

 

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

 

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

 

**7.13****                       ****Financial Covenants**.

 

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

 

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

 

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

 

**ARTICLE VIII.EVENTS OF DEFAULT AND REMEDIES**

** **

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

 

(a)                                  Non-Payment. The Borrower or any other Loan Party fails to pay (i) when and asrequired to be paid herein, any amount of principal of any Loan or any L/CObligation, or (ii) within three days after the same becomes due, any intereston any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) withinfive days after the same becomes due, any other amount payable hereunder orunder any other Loan Document; or

 

(b)                                 Specific Covenants. The Borrower fails to perform or observe any term, covenant or agreementcontained in any of Section 6.01, 6.02, 6.03, 6.05(a),6.10, 6.11, 6.12, 6.14 or 6.15 or Article VII, or any Guarantor fails to perform orobserve any similar term, covenant or agreement contained in the Guaranty;or

 

(c)                                  Other Defaults. Any Loan Party fails to perform or observe any other covenant oragreement (not specified in subsection (a) or (b) above)contained in any Loan Document on its part to be performed or observed and suchfailure continues for 30 days; or

 

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

 

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

 

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part (provided thepayment of any of the Subordinated Notes when the same shall become due andpayable or subject to a mandatory redemption or repurchase by the terms thereofshall not be a default hereunder unless the payments to the holders thereofhave been blocked pursuant to the subordination provisions contained in theSubordinated Debt Documents); or the Borrower or any of its Subsidiaries shallbe or become required under the terms of any of the Subordinated Debt Documentsto prepay, redeem or repurchase (or shall be or become required thereunder tooffer to prepay, redeem or repurchase) all or any part of the Subordinated Debt(provided the payment of any of the Subordinated Notes when the same shallbecome due and payable or subject to a mandatory redemption or repurchase bythe terms thereof shall not be a default hereunder unless the payments to theholders thereof have been blocked pursuant to the subordination provisionscontained in the Subordinated Debt Documents); (ii) the Borrower or anySubsidiary (A) fails to make any payment when due (whether by scheduledmaturity, required prepayment, acceleration, demand, or otherwise) in respectof the Subordinated Debt, or any Indebtedness or Guarantee (other thanIndebtedness hereunder and Indebtedness under Swap Contracts) having anaggregate principal amount (including undrawn committed or available amountsand including amounts owing to all creditors under any combined or syndicatedcredit arrangement) of more than the $5,000,000, or (B) fails to observeor perform any other agreement or condition relating to the Subordinated Debtany such Indebtedness or Guarantee or contained in any instrument or agreementevidencing, securing or relating thereto, or any other event occurs, the effectof which default or other event is to cause, or to permit the holder or holdersof such Indebtedness or the beneficiary or beneficiaries of such Guarantee (ora trustee or agent on behalf of such holder or holders or beneficiary orbeneficiaries) to cause, with the giving of notice if required, suchIndebtedness to be demanded or to become due or to be repurchased, prepaid,defeased or redeemed (automatically or otherwise), or an offer to repurchase,prepay, defease or redeem such Indebtedness to be made, prior to its statedmaturity, or such Guarantee to become payable or cash collateral in respectthereof to be demanded; or (iii) there occurs under any Swap Contract anEarly Termination Date (as defined in such Swap Contract) resulting from (A) anyevent of default under such Swap Contract as to which the Borrower or anySubsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) anyTermination Event (as so defined) under such Swap Contract as to which theBorrower or any Subsidiary is an Affected Party (as so defined) and, in eitherevent, the Swap Termination Value owed by the Borrower or such Subsidiary as aresult thereof is greater than $5,000,000; or

 

(f)                                    Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries (other than a DeMinimisSubsidiary) institutes or consents to the institution of any proceeding underany Debtor Relief Law, or makes an assignment for the benefit of creditors; orapplies for or consents to the appointment of any receiver, trustee, custodian,conservator, liquidator, rehabilitator or similar officer for it or for all or anymaterial part of its property; or any receiver, trustee, custodian,conservator, liquidator, rehabilitator or similar officer is appointed withoutthe application or consent of such Person and the appointment continuesundischarged or unstayed for 60 calendar days; or any proceeding under anyDebtor Relief Law relating to any such Person or to all or any material part ofits property is instituted without the consent of such Person and continuesundismissed or unstayed for 60 calendar days, or an order for relief is enteredin any such proceeding; or

 

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

 

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to pay its debts as theybecome due, or (ii) any writ or warrant of attachment or execution orsimilar process is issued or levied against all or any material part of theproperty of any such Person and is not released, vacated or fully bonded within30 days after its issue or levy; or

 

(h)                                 Judgments.  There (i) thereshall remain in force, undischarged, unsatisfied and unstayed, for more thanthirty days, whether or not consecutive, any final judgment against theBorrower or any of its Subsidiaries that, with other outstanding finaljudgments, undischarged, against the Borrower or any of its Subsidiariesexceeds in the aggregate $5,000,000; or (ii) is entered against theBorrower or any Subsidiary any one or more non-monetary final judgments thathave, individually or in the aggregate, a Material Adverse Effect andenforcement proceedings in connection with any such non-monetary judgment arecommenced by any creditor upon such judgment or order, or there is a period ofthirty consecutive days during which a stay of enforcement of such non-monetaryjudgment, by reason of a pending appeal or otherwise, is not in effect; or

 

(i)                                     ERISA.  (i) AnERISA Event occurs with respect to a Pension Plan or Multiemployer Plan whichhas resulted or could reasonably be expected to result in liability of theBorrower under Title IV of ERISA to the Pension Plan, Multiemployer Planor the PBGC in an aggregate amount in excess of $2,500,000, or (ii) theBorrower or any ERISA Affiliate fails to pay when due, after the expiration ofany applicable grace period, any installment payment with respect to itswithdrawal liability under Section 4201 of ERISA under a MultiemployerPlan in an aggregate amount in excess of $2,500,000; or

 

(j)                                     Invalidity of Loan Documents. Any of the Loan Documents shall be cancelled, terminated, revoked orrescinded otherwise than in accordance with the terms thereof or with theexpress prior written agreement, consent or approval of the Lenders, or anyaction at law, suit or in equity or other legal proceeding to cancel, revoke orrescind any of the Loan Documents shall be commenced by or on behalf of theBorrower or any of its Subsidiaries party thereto or any of their respectivestockholders, or any court or any other governmental or regulatory authority oragency of competent jurisdiction shall make a determination that, or issue ajudgment, order, decree or ruling to the effect that, any one or more of theLoan Documents is illegal, invalid or unenforceable in accordance with the termsthereof; or

 

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

 

**8.02****                       ****Remedies Upon Event of Default.** If any Event of Default occurs and is continuing, the AdministrativeAgent shall, at the request of, or may, with the consent of, the RequiredLenders, take any or all of the following actions:

 

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

 

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

 

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(c)                                  require that the Borrower CashCollateralize the L/C Obligations (in an amount equal to the then OutstandingAmount thereof); and

 

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

 

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

 

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

 

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

 

Second, to payment of that portion of theObligations constituting fees, indemnities and other amounts (other thanprincipal, interest, Letter of Credit Fees and amounts under any SwapContracts) payable to the Lenders and the L/C Issuer (including fees, chargesand disbursements of counsel to the respective Lenders and the L/C Issuer (including fees and time charges forattorneys who may be employees of any Lender or the L/C Issuer) andamounts payable under Article III), ratably among them inproportion to the respective amounts described in this clause Secondpayable to them;

 

Third, to payment of that portion of theObligations constituting accrued and unpaid Letter of Credit Fees and intereston the Loans, L/C Borrowings and other Obligations, ratably among the Lendersand the L/C Issuer in proportion to the respective amounts described in thisclause Third payable to them;

 

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

 

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

 

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

 

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

 

**ARTICLE IX.ADMINISTRATIVE AGENT**

** **

**9.01****                       ****Appointment and Authority**.

 

Each of theLenders and the L/C Issuer hereby irrevocably appoints Bank of America to acton its behalf as the Administrative Agent hereunder and under the other LoanDocuments and authorizes the Administrative Agent to take such actions on itsbehalf and to exercise such powers as are delegated to the Administrative Agentby the terms hereof or thereof, together with such actions and powers as arereasonably incidental thereto.  Theprovisions of this Article are solely for the benefit of theAdministrative Agent, the Lenders and the L/C Issuer, and neither the Borrowernor any Loan Party shall have rights as a third party beneficiary of any ofsuch provisions.

 

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

 

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

 

(a)                                  shall not be subject to any fiduciary orother implied duties, regardless of whether a Default has occurred and iscontinuing;

 

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

 

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

 

The AdministrativeAgent shall not be liable for any action taken or not taken by it (i) withthe consent or at the request of the Required Lenders (or such other number orpercentage of the Lenders as shall be necessary, or as the Administrative Agentshall believe in good faith shall be necessary, under the circumstances asprovided in Sections 10.01 and 8.02) or (ii) in the absenceof its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed notto have knowledge of any Default unless and until notice describing suchDefault is given to the Administrative Agent by the Borrower, a Lender or theL/C Issuer.

 

The AdministrativeAgent shall not be responsible for or have any duty to ascertain or inquireinto (i) any statement, warranty or representation made in or inconnection with this Agreement or any other Loan Document, (ii) thecontents of any certificate, report or other document delivered hereunder orthereunder or in connection herewith or therewith, (iii) the performanceor observance of any of the covenants, agreements or other terms or conditionsset forth herein or therein or the occurrence of any Default, (iv) thevalidity, enforceability, effectiveness or genuineness of this Agreement, anyother Loan Document or any other agreement, instrument or document or (v) thesatisfaction of any condition set forth in Article IV or elsewhereherein, other than to confirm receipt of items expressly required to bedelivered to the Administrative Agent.

 

**9.04****                       ****Reliance by Administrative Agent**.

 

The AdministrativeAgent shall be entitled to rely upon, and shall not incur any liability forrelying upon, any notice, request, certificate, consent, statement, instrument,document or other writing (including any electronic message, Internet orintranet website posting or other distribution) believed by it to be genuineand to have been signed, sent or otherwise authenticated by the properPerson.  The Administrative Agent alsomay rely upon any statement made to it orally or by telephone and reasonablybelieved by it to have been made by the proper Person, and shall not incur anyliability for relying thereon.  Indetermining compliance with any condition hereunder to the making of a Loan, orthe issuance of a Letter of Credit, that by its terms must be fulfilled to thesatisfaction of a Lender or the L/C Issuer, the Administrative Agent maypresume that such condition is satisfactory to such Lender or the L/C Issuerunless the Administrative Agent shall have received notice to the contrary fromsuch Lender or the L/C Issuer prior to the making of such Loan or the issuanceof such Letter of Credit.  TheAdministrative Agent may consult with legal counsel (who may be counsel for theBorrower), independent accountants and other experts selected by it, and shallnot be liable for any action taken or not taken by it in accordance with theadvice of any such counsel, accountants or experts.

 

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

 

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Agent and any such sub-agentmay perform any and all of its duties and exercise its rights and powers by orthrough their respective Related Parties. The exculpatory provisions of this Article shall apply to any suchsub-agent and to the Related Parties of the Administrative Agent and any suchsub-agent, and shall apply to their respective activities in connection withthe syndication of the credit facilities provided for herein as well asactivities as Administrative Agent.

 

**9.06****                       ****Resignation of AdministrativeAgent.**  The Administrative Agent may at any time givenotice of its resignation to the Lenders, the L/C Issuer and the Borrower.  Upon receipt of any such notice ofresignation, the Required Lenders shall have the right, in consultation withthe Borrower, to appoint a successor, which shall be a bank with an office inthe United States, or an Affiliate of any such bank with an office in theUnited States.  If no such successorshall have been so appointed by the Required Lenders and shall have acceptedsuch appointment within 30 days after the retiring Administrative Agentgives notice of its resignation, then the retiring Administrative Agent may onbehalf of the Lenders and the L/C Issuer, appoint a successor AdministrativeAgent meeting the qualifications set forth above; provided that if theAdministrative Agent shall notify the Borrower and the Lenders that noqualifying Person has accepted such appointment, then such resignation shallnonetheless become effective in accordance with such notice and (1) theretiring Administrative Agent shall be discharged from its duties andobligations hereunder and under the other Loan Documents (except that in the case of any collateralsecurity held by the Administrative Agent on behalf of the Lenders or the L/CIssuer under any of the Loan Documents, the retiring Administrative Agent shallcontinue to hold such collateral security until such time as a successorAdministrative Agent is appointed) and (2) all payments,communications and determinations provided to be made by, to or through theAdministrative Agent shall instead be made by or to each Lender and the L/CIssuer directly, until such time as the Required Lenders appoint a successorAdministrative Agent as provided for above in this Section.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, such successor shall succeed toand become vested with all of the rights, powers, privileges and duties of theretiring (or retired) Administrative Agent, and the retiring AdministrativeAgent shall be discharged from all of its duties and obligations hereunder orunder the other Loan Documents (if not already discharged therefrom as providedabove in this Section).  The fees payableby the Borrower to a successor Administrative Agent shall be the same as thosepayable to its predecessor unless otherwise agreed between the Borrower andsuch successor.  After the retiringAdministrative Agent’s resignation hereunder and under the other LoanDocuments, the provisions of this Article and Section 10.04shall continue in effect for the benefit of such retiring Administrative Agent,its sub-agents and their respective Related Parties in respect of any actionstaken or omitted to be taken by any of them while the retiring AdministrativeAgent was acting as Administrative Agent.

 

Any resignation byBank of America as Administrative Agent pursuant to this Section shallalso constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, (a) such successor shallsucceed to and become vested with all of the rights, powers, privileges andduties of the retiring L/C Issuer and Swing Line Lender, (b) the retiringL/C Issuer and Swing Line Lender shall be discharged from all of theirrespective duties and obligations hereunder or under the other Loan Documents,and (c) the successor L/C Issuer shall issue letters of credit insubstitution for the Letters of Credit, if any, outstanding at the time of suchsuccession or make other arrangements

 

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satisfactory to the retiring L/C Issuer to effectively assume theobligations of the retiring L/C Issuer with respect to such Letters of Credit.

 

**9.07****                       ****Non-Reliance on AdministrativeAgent and Other Lenders.**  Each Lender and the L/C Issueracknowledges that it has, independently and without reliance upon theAdministrative Agent or any other Lender or any of their Related Parties andbased on such documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter into this Agreement.  Each Lender and the L/C Issuer alsoacknowledges that it will, independently and without reliance upon theAdministrative Agent or any other Lender or any of their Related Parties andbased on such documents and information as it shall from time to time deem appropriate,continue to make its own decisions in taking or not taking action under orbased upon this Agreement, any other Loan Document or any related agreement orany document furnished hereunder or thereunder.

 

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

 

**9.09****                       ****Administrative Agent May FileProofs 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, theAdministrative Agent (irrespective of whether the principal of any Loan or L/CObligation shall then be due and payable as herein expressed or by declarationor otherwise and irrespective of whether the Administrative Agent shall havemade any demand on the Borrower) shall be entitled and empowered, byintervention in such proceeding or otherwise

 

(a)                                  to file and prove a claim for the wholeamount of the principal and interest owing and unpaid in respect of the Loans,L/C Obligations and all other Obligations that are owing and unpaid and to filesuch other documents as may be necessary or advisable in order to have theclaims of the Lenders, the L/C Issuer and the Administrative Agent (includingany claim for the reasonable compensation, expenses, disbursements and advancesof the Lenders, the L/C Issuer and the Administrative Agent and theirrespective agents and counsel and all other amounts due the Lenders, the L/CIssuer and the Administrative Agent under Sections 2.03(i) and (j),2.09 and 10.04) allowed in such judicial proceeding; and

 

(b)                                 to collect and receive any monies orother property payable or deliverable on any such claims and to distribute thesame;

 

and any custodian,receiver, assignee, trustee, liquidator, sequestrator or other similar officialin any such judicial proceeding is hereby authorized by each Lender and the L/CIssuer to make such payments to the Administrative Agent and, in the event thatthe Administrative Agent shall consent to the making of such payments directlyto the Lenders and the L/C Issuer, to pay to the Administrative Agent anyamount due for the reasonable compensation,****expenses,disbursements

 

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

 

Nothing containedherein shall be deemed to authorize the Administrative Agent to authorize orconsent to or accept or adopt on behalf of any Lender or the L/C Issuer anyplan of reorganization, arrangement, adjustment or composition affecting theObligations or the rights of any Lender or to authorize the AdministrativeAgent to vote in respect of the claim of any Lender in any such proceeding.

 

**9.10****                       ****Guaranty Matters**. The Lenders and the L/C Issuer irrevocably authorize the AdministrativeAgent, at its option and in its discretion**,**

 

(a)                                  to release any Guarantor from itsobligations under the Guaranty if such Person ceases to be a Subsidiary as aresult of a transaction permitted hereunder.

 

Upon request bythe Administrative Agent at any time, the Required Lenders will confirm inwriting the Administrative Agent’s authority to release any Guarantor from itsobligations under the Guaranty pursuant to this Section 9.10.

 

**ARTICLE X.MISCELLANEOUS**

** **

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

 

(a)                                  waive any condition set forth in Section 4.01(a) withoutthe written consent of each Lender;

 

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

 

(c)                                  postpone any date fixed by this Agreementor any other Loan Document for any payment (excluding mandatory prepaymentspursuant to Section 2.07(c) orotherwise) of principal, interest, fees or other amounts due to the Lenders (orany of them)  hereunder or under anyother Loan Document without the written consent of each Lender directlyaffected thereby;

 

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

 

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

 

(e)                                  change Section 2.13 or Section 8.03in a manner that would alter the pro rata sharing of payments required therebywithout the written consent of each Lender;

 

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

 

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

 

and, providedfurther,that (i) no amendment, waiver or consent shall, unless in writing andsigned by the L/C Issuer in addition to the Lenders required above, affect therights or duties of the L/C Issuer under this Agreement or any Issuer Documentrelating to any Letter of Credit issued or to be issued by it; (ii) noamendment, waiver or consent shall, unless in writing and signed by the SwingLine Lender in addition to the Lenders required above, affect the rights orduties of the Swing Line Lender under this Agreement; (iii) no amendment,waiver or consent shall, unless in writing and signed by the AdministrativeAgent in addition to the Lenders required above, affect the rights or duties ofthe Administrative Agent under this Agreement or any other Loan Document;  (iv) Section 10.06(h) maynot be amended, waived or otherwise modified without the consent of eachGranting Lender all or any part of whose Loans are being funded by an SPC atthe time of such amendment, waiver or other modification; and (v) the FeeLetter may be amended, or rights or privileges thereunder waived, in a writingexecuted only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lendershall have any right to approve or disapprove any amendment, waiver or consenthereunder, except that the Commitment of such Lender may not be increased orextended without the consent of such Lender.

 

**10.02****                ****Notices; Effectiveness;Electronic Communication**.

 

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

 

(i)                                     if to the Borrower, the AdministrativeAgent, the L/C Issuer or the Swing Line Lender, to the address, telecopiernumber, electronic mail address or telephone number specified for such Personon Schedule 10.02; and

 

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

 

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

 

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

 

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

 

(c)                                  The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.”  THE AGENT PARTIES (AS DEFINED BELOW) DO NOTWARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACYOF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONSFROM THE BORROWER MATERIALS.  NO WARRANTYOF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRDPARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANYAGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.  In no event shall the Administrative Agent orany of its Related Parties (collectively, the “Agent Parties”) have anyliability to the Borrower, any Lender, the L/C Issuer or any other Person forlosses, claims, damages, liabilities or expenses of any kind (whether in tort,contract or otherwise) arising out of the Borrower’s or the AdministrativeAgent’s transmission of Borrower Materials through the Internet, except to theextent that such losses, claims, damages, liabilities or expenses aredetermined by a court of competent jurisdiction by a final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct ofsuch Agent Party; provided, however, that in no event shall anyAgent Party have any liability to the Borrower, any Lender, the L/C Issuer orany other

 

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Person for indirect,special, incidental, consequential or punitive damages (as opposed to direct oractual damages).

 

(d)                                 Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C Issuer and theSwing Line Lender may change its address, telecopier or telephone number fornotices and other communications hereunder by notice to the other partieshereto.  Each other Lender may change itsaddress, telecopier or telephone number for notices and other communicationshereunder by notice to the Borrower, the Administrative Agent, the L/C Issuerand the Swing Line Lender.  In addition,each Lender agrees to notify the Administrative Agent from time to time toensure that the Administrative Agent has on record (i) an effectiveaddress, contact name, telephone number, telecopier number and electronic mailaddress to which notices and other communications may be sent and (ii) accuratewire instructions for such Lender.

 

(e)                                  Reliance by Administrative Agent, L/CIssuer and Lenders.  The Administrative Agent, the L/C Issuer andthe Lenders shall be entitled to rely and act upon any notices (includingtelephonic Committed Loan Notices and Swing Line Loan Notices) reasonablybelieved to be given by or on behalf of the Borrower even if (i) suchnotices were not made in a manner specified herein, were incomplete or were notpreceded or followed by any other form of notice specified herein, or (ii) theterms thereof, as understood by the recipient, varied from any confirmationthereof.  The Borrower shall indemnifythe Administrative Agent, the L/C Issuer, each Lender and the Related Partiesof each of them from all losses, costs, expenses and liabilities resulting fromthe reliance by such Person on each notice purportedly given by or on behalf ofthe Borrower.  All telephonic notices toand other telephonic communications with the Administrative Agent may berecorded by the Administrative Agent, and each of the parties hereto herebyconsents to such recording.

 

**10.03****                ****No Waiver; Cumulative Remedies.** No failure by any Lender, the L/C Issuer or the Administrative Agent toexercise, and no delay by any such Person in exercising, any right, remedy,power or privilege hereunder shall operate as a waiver thereof; nor shall anysingle or partial exercise of any right, remedy, power or privilege hereunderpreclude any other or further exercise thereof or the exercise of any otherright, remedy, power or privilege.  Therights, remedies, powers and privileges herein provided are cumulative and notexclusive of any rights, remedies, powers and privileges provided by law.

 

**10.04****                ****Expenses; Indemnity; DamageWaiver**.

 

(a)                                  Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expensesincurred by the Administrative Agent and its Affiliates (including thereasonable fees, charges and disbursements of counsel for the AdministrativeAgent), in connection with the syndication of the credit facilities providedfor herein, the preparation, negotiation, execution, delivery andadministration of this Agreement and the other Loan Documents or any amendments,modifications or waivers of the provisions hereof or thereof (whether or notthe transactions contemplated hereby or thereby shall be consummated), (ii) allreasonable out-of-pocket expenses incurred by the L/C Issuer in connection withthe issuance, amendment, renewal or extension of any Letter of Credit or anydemand for payment thereunder and (iii) all out-of-pocket expensesincurred by the Administrative Agent, any Lender or the L/C Issuer (includingthe fees, charges and disbursements of any counsel for the AdministrativeAgent, any

 

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Lender or the L/CIssuer), in connection with the enforcement or protection of its rights (A) inconnection with this Agreement and the other Loan Documents, including itsrights under this Section, or (B) in connection with the Loans made orLetters of Credit issued hereunder, including all such reasonable out-of-pocketexpenses incurred during any workout, restructuring or negotiations in respectof such Loans or Letters of Credit.

 

(b)                                 Indemnification by the Borrower. The Borrower shall indemnify the Administrative Agent (and any sub-agentthereof), each Lender and the L/C Issuer, and each Related Party of any of theforegoing Persons (each such Person being called an “Indemnitee”)against, and hold each Indemnitee harmless from, any and all losses, claims,damages, civil penalties, liabilities and related expenses (including thereasonable fees, charges and disbursements of any counsel for any Indemnitee),incurred by any Indemnitee or asserted against any Indemnitee by any thirdparty or by the Borrower or any other Loan Party arising out of, in connectionwith, or as a result of (i) the execution or delivery of this Agreement,any other Loan Document or any agreement or instrument contemplated hereby orthereby, the performance by the parties hereto of their respective obligationshereunder or thereunder, the consummation of the transactions contemplatedhereby or thereby, or, in the case of the Administrative Agent (and anysub-agent thereof) and its Related Parties only, the administration of thisAgreement and the other Loan Documents, (ii) any Loan or Letter of Creditor the use or proposed use of the proceeds therefrom (including any refusal bythe L/C Issuer to honor a demand for payment under a Letter of Credit if thedocuments presented in connection with such demand do not strictly comply withthe terms of such Letter of Credit), (iii) any actual or alleged presenceor release of Hazardous Materials on or from any property owned or operated bythe Borrower or any of its Subsidiaries, or any Environmental Liability relatedin any way to the Borrower or any of its Subsidiaries, or (iv) any actualor prospective claim, litigation, investigation or proceeding relating to anyof the foregoing, whether based on contract, tort or any other theory, whetherbrought by a third party or by the Borrower or any other Loan Party, andregardless of whether any Indemnitee is a party thereto, in all cases, whether or not caused by or arising, in whole or in part,out of the comparative, contributory or sole negligence of the Indemnitee;provided that such indemnity shall not, as to any Indemnitee, beavailable to the extent that such losses, claims, damages, liabilities or relatedexpenses (x) are determined by a court of competent jurisdiction by finaland nonappealable judgment to have resulted from the gross negligence orwillful misconduct of such Indemnitee or (y) result from a claim broughtby the Borrower or any other Loan Party against an Indemnitee for breach in badfaith of such Indemnitee’s obligations hereunder or under any other LoanDocument, if the Borrower or such Loan Party has obtained a final andnonappealable judgment in its favor on such claim as determined by a court ofcompetent jurisdiction.

 

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

 

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

 

(d)                                 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrower shallnot assert, and hereby waives, any claim against any Indemnitee, on any theoryof liability, for special, indirect, consequential or punitive damages (asopposed to direct or actual damages) arising out of, in connection with, or asa result of, this Agreement, any other Loan Document or any agreement orinstrument contemplated hereby, the transactions contemplated hereby orthereby, any Loan or Letter of Credit or the use of the proceeds thereof.  Subject to the limitations contained therein,no Indemnitee referred to in subsection (b) above shall be liable forany damages arising from the use by unintended recipients of any information orother materials distributed by it through telecommunications, electronic orother information transmission systems in connection with this Agreement or theother Loan Documents or the transactions contemplated hereby or thereby.

 

(e)                                  Payments.  All amountsdue under this Section shall be payable not later than ten Business Daysafter demand therefor, which demand shall include a reasonably detaileddescription of the amounts being demanded.

 

(f)                                    Survival.  Theagreements in this Section shall survive the resignation of theAdministrative Agent and the L/C Issuer, the replacement of any Lender, thetermination of the Aggregate Commitments and the repayment, satisfaction ordischarge of all the other Obligations.

 

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

 

**10.06****                ****Successors and Assigns**.

 

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

 

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assigns permitted hereby,except that neither the Borrower nor any Loan Party may assign or otherwisetransfer any of its rights or obligations hereunder without the prior writtenconsent of the Administrative Agent and each Lender and no Lender may assign orotherwise transfer any of its rights or obligations hereunder except (i) toan Eligible Assignee in accordance with the provisions of subsection (b) ofthis Section, (ii) by way of participation in accordance with theprovisions of subsection (d) of this Section, (iii) by way ofpledge or assignment of a security interest subject to the restrictions of subsection (f) ofthis Section, or (iv) to an SPC in accordance with the provisions of subsection (h) ofthis Section (and any other attempted assignment or transfer by any partyhereto shall be null and void).  Nothingin this Agreement, expressed or implied, shall be construed to confer upon anyPerson (other than the parties hereto, their respective successors and assignspermitted hereby, Participants to the extent provided in subsection (d) ofthis Section and, to the extent expressly contemplated hereby, the RelatedParties of each of the Administrative Agent, the L/C Issuer and the Lenders)any legal or equitable right, remedy or claim under or by reason of thisAgreement.

 

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

 

(i)                                     except in the case of an assignment ofthe entire remaining amount of the assigning Lender’s Commitment and the Loansat the time owing to it or in the case of an assignment to a Lender or anAffiliate of a Lender or an Approved Fund with respect to a Lender, theaggregate amount of the Commitment (which for this purpose includes Loansoutstanding thereunder) or, if the Commitment is not then in effect, theprincipal outstanding balance of the Loans of the assigning Lender subject toeach such assignment, determined as of the date the Assignment and Assumptionwith respect to such assignment is delivered to the Administrative Agent or, if“Trade Date” is specified in the Assignment and Assumption, as of the TradeDate, shall not be less than $5,000,000****unless each ofthe Administrative Agent and, so long as no Event of Default has occurred andis continuing, the Borrower otherwise consents (each such consent not to beunreasonably withheld or delayed); provided, however, thatconcurrent assignments to members of an Assignee Group and concurrentassignments from members of an Assignee Group to a single Eligible Assignee (orto an Eligible Assignee and members of its Assignee Group) will be treated as asingle assignment for purposes of determining whether such minimum amount has beenmet;

 

(ii)                                  each partial assignment shall be made asan assignment of a proportionate part of all the assigning Lender’s rights andobligations under this Agreement with respect to the Loans or the Commitmentassigned, except that this clause (ii) shall not apply to rights inrespect of Swing Line Loans;

 

(iii)                               any assignment of a Commitment must beapproved by the Administrative Agent, the L/C Issuer and the Swing Line Lenderunless the Person that is the proposed assignee is itself a Lender (whether ornot the proposed assignee would otherwise qualify as an Eligible Assignee); and

 

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(iv)                              the parties to each assignment shallexecute and deliver to the Administrative Agent an Assignment and Assumption, togetherwith a processing and recordation fee in the amount, if any, required as setforth in Schedule 10.06, and the Eligible Assignee, if it shall notbe a Lender, shall deliver to the Administrative Agent an AdministrativeQuestionnaire.

 

Subject to acceptance andrecording thereof by the Administrative Agent pursuant to subsection (c) ofthis Section, from and after the effective date specified in each Assignmentand Assumption, the Eligible Assignee thereunder shall be a party to thisAgreement and, to the extent of the interest assigned by such Assignment andAssumption, have the rights and obligations of a Lender under this Agreement,and the assigning Lender thereunder shall, to the extent of the interestassigned by such Assignment and Assumption, be released from its obligationsunder this Agreement (and, in the case of an Assignment and Assumption coveringall of the assigning Lender’s rights and obligations under this Agreement, suchLender shall cease to be a party hereto) but shall continue to be entitled tothe benefits of Sections 3.01, 3.04, 3.05, and 10.04with respect to facts and circumstances occurring prior to the effective dateof such assignment.  Upon request, theBorrower (at its expense) shall execute and deliver a Note to the assigneeLender.  Any assignment or transfer by aLender of rights or obligations under this Agreement that does not comply withthis subsection shall be treated for purposes of this Agreement as a saleby such Lender of a participation in such rights and obligations in accordancewith subsection (d) of this Section.

 

(c)                                  Register.  TheAdministrative Agent, acting solely for this purpose as an agent of theBorrower, shall maintain at the Administrative Agent’s Office a copy of eachAssignment and Assumption delivered to it and a register for the recordation ofthe names and addresses of the Lenders, and the Commitments of, and principalamounts of the Loans and L/C Obligations owing to, each Lender pursuant to theterms hereof from time to time (the “Register”).  The entries in the Register shall beconclusive, and the Borrower, the Administrative Agent and the Lenders maytreat each Person whose name is recorded in the Register pursuant to the termshereof as a Lender hereunder for all purposes of this Agreement,notwithstanding notice to the contrary. The Register shall be available for inspection by each of the Borrowerand the L/C Issuer at any reasonable time and from time to time upon reasonableprior notice.  In addition, at any timethat a request for a consent for a material or substantive change to the LoanDocuments is pending, any Lender may request and receive from theAdministrative Agent a copy of the Register.

 

(d)                                 Participations. Any Lender may at any time, without the consent of, or notice to, theBorrower or the Administrative Agent, sell participations to any Person (otherthan a natural person or the Borrower or any of the Borrower’s Affiliates orSubsidiaries) (each, a “Participant”) in all or a portion of such Lender’srights and/or obligations under this Agreement (including all or a portion ofits Commitment and/or the Loans (including such Lender’s participations in L/CObligations and/or Swing Line Loans) owing to it); provided that (i) suchLender’s obligations under this Agreement shall remain unchanged, (ii) suchLender shall remain solely responsible to the other parties hereto for theperformance of such obligations and (iii) the Borrower, the AdministrativeAgent, the Lenders and the L/C Issuer shall continue to deal solely and directlywith such Lender in connection with such Lender’s rights and obligations underthis Agreement.

 

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Any agreement orinstrument pursuant to which a Lender sells such a participation shall providethat such Lender shall retain the sole right to enforce this Agreement and toapprove any amendment, modification or waiver of any provision of thisAgreement; provided that such agreement or instrument may provide thatsuch Lender will not, without the consent of the Participant, agree to anyamendment, waiver or other modification described in the first proviso to Section 10.01that affects such Participant.  Subjectto subsection (e) of this Section, the Borrower agrees that eachParticipant shall be entitled to the benefits of Sections 3.01, 3.04and 3.05**to the same extent as if it werea Lender and had acquired its interest by assignment pursuant to subsection (b) ofthis Section.  To the extent permitted bylaw, each Participant also shall be entitled to the benefits of Section 10.08**as though it were a Lender, provided suchParticipant agrees to be subject to Section 2.13 as though it werea Lender.

 

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

 

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

 

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

 

(h)                                 Special Purpose Funding Vehicles. Notwithstanding anything to the contrary contained herein, any Lender (a“Granting Lender”) may grant to a special purpose funding vehicleidentified as such in writing from time to time by the Granting Lender to theAdministrative Agent and the Borrower (an “SPC”) the option to provideall or any part of any Committed Loan that such Granting Lender would otherwisebe obligated to make pursuant to this Agreement; provided that (i) nothingherein shall constitute a commitment by any SPC to fund any Committed Loan, and(ii) if an SPC elects not to exercise such option or otherwise fails tomake all or any part of such Committed Loan, the Granting Lender shall beobligated to make such Committed Loan pursuant to the terms hereof or, if itfails to do so, to make such payment to the Administrative Agent as is requiredunder Section 2.12(b)(ii). Each party hereto hereby

 

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agrees that (i) neitherthe grant to any SPC nor the exercise by any SPC of such option shall increasethe costs or expenses or otherwise increase or change the obligations of theBorrower under this Agreement (including its obligations under Section 3.04),(ii) no SPC shall be liable for any indemnity or similar paymentobligation under this Agreement for which a Lender would be liable, and (iii) theGranting Lender shall for all purposes, including the approval of anyamendment, waiver or other modification of any provision of any Loan Document,remain the lender of record hereunder. The making of a Committed Loan by an SPC hereunder shall utilize theCommitment of the Granting Lender to the same extent, and as if, such CommittedLoan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (whichagreement shall survive the termination of this Agreement) that, prior to thedate that is one year and one day after the payment in full of all outstandingcommercial paper or other senior debt of any SPC, it will not instituteagainst, or join any other Person in instituting against, such SPC anybankruptcy, reorganization, arrangement, insolvency, or liquidation proceedingunder the laws of the United States or any State thereof.  Notwithstanding anything to the contrarycontained herein, any SPC may (i) with notice to, but without priorconsent of the Borrower and the Administrative Agent and with the payment of aprocessing fee in the amount of $2,500, assign all or any portion of its rightto receive payment with respect to any Committed Loan to the Granting Lenderand (ii) disclose on a confidential basis any non-public informationrelating to its funding of Committed Loans to any rating agency, commercialpaper dealer or provider of any surety or Guarantee or credit or liquidityenhancement to such SPC.

 

(i)                                     Resignation as L/C Issuer or Swing LineLender after Assignment.  Notwithstanding anything tothe contrary contained herein, if at any time Bank of America assigns all ofits Commitment and Loans pursuant to subsection (b) above, Bank ofAmerica may, (i) upon 30 days’ notice to the Borrower and the Lenders,resign as L/C Issuer and/or (ii) upon 30 days’ notice to the Borrower,resign as Swing Line Lender.  In theevent of any such resignation as L/C Issuer or Swing Line Lender, the Borrowershall be entitled to appoint from among the Lenders a successor L/C Issuer orSwing Line Lender hereunder; provided, however, that no failureby the Borrower to appoint any such successor shall affect the resignation ofBank of America as L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, itshall retain all the rights, powers, privileges and duties of the L/C Issuerhereunder with respect to all Letters of Credit outstanding as of the effectivedate of its resignation as L/C Issuer and all L/C Obligations with respectthereto (including the right to require the Lenders to make Base Rate CommittedLoans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing LineLender, it shall retain all the rights of the Swing Line Lender provided forhereunder with respect to Swing Line Loans made by it and outstanding as of theeffective date of such resignation, including the right to require the Lendersto make Base Rate Committed Loans or fund risk participations in outstandingSwing Line Loans pursuant to Section 2.04(c).  Upon the appointment of a successor L/CIssuer and/or Swing Line Lender, (a) such successor shall succeed to andbecome vested with all of the rights, powers, privileges and duties of theretiring L/C Issuer or Swing Line Lender, as the case may be, and (b) thesuccessor L/C Issuer shall issue letters of credit in substitution for theLetters of Credit, if any, outstanding at the time of such succession or makeother arrangements satisfactory to Bank of America to effectively assume theobligations of Bank of America with respect to such Letters of Credit.

 

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**10.07****                ****Treatment of Certain Information;Confidentiality.**  Each of the Administrative Agent, the Lendersand the L/C Issuer agrees to maintain the confidentiality of the Information(as defined below), except that Information may be disclosed (a) to itsAffiliates and to its and its Affiliates’ respective partners, directors,officers, employees, agents, advisors and representatives (it being understoodthat the Persons to whom such disclosure is made will be informed of theconfidential nature of such Information and instructed to keep such Informationconfidential), (b) to the extent requested by any regulatory authoritypurporting to have jurisdiction over it (including any self-regulatoryauthority, such as the National Association of Insurance Commissioners), (c) tothe extent required by applicable laws or regulations or by any subpoena orsimilar legal process, (d) to any other party hereto, (e) inconnection with the exercise of any remedies hereunder or under any other LoanDocument or any action or proceeding relating to this Agreement or any otherLoan Document or the enforcement of rights hereunder or thereunder, (f) subjectto an agreement containing provisions substantially the same as those of thisSection, to (i) any assignee of or Participant in, or any prospectiveassignee of or Participant in, any of its rights or obligations under thisAgreement or (ii) any actual or prospective counterparty (or its advisors)to any swap or derivative transaction relating to the Borrower and itsobligations, (g) with the consent of the Borrower or (h) to theextent such Information (x) becomes publicly available other than as a resultof a breach of this Section or (y) becomes available to the AdministrativeAgent, any Lender, the L/C Issuer or any of their respective Affiliates on anonconfidential basis from a source other than the Borrower.

 

For purposes ofthis Section, “Information” means all information received from theBorrower or any Subsidiary relating to the Borrower or any Subsidiary or any oftheir respective businesses, other than any such information that is availableto the Administrative Agent, any Lender or the L/C Issuer on a nonconfidentialbasis prior to disclosure by the Borrower or any Subsidiary, providedthat, in the case of information received from the Borrower or any Subsidiaryafter the date hereof, such information is clearly identified at the time ofdelivery as confidential.  Any Personrequired to maintain the confidentiality of Information as provided in this Section shallbe considered to have complied with its obligation to do so if such Person hasexercised the same degree of care to maintain the confidentiality of suchInformation as such Person would accord to its own confidential information.

 

Each of theAdministrative Agent, the Lenders and the L/C Issuer acknowledges that (a) theInformation may include material non-public information concerning the Borroweror a Subsidiary, as the case may be, (b) it has developed complianceprocedures regarding the use of material non-public information and (c) itwill handle such material non-public information in accordance with applicableLaw, including Federal and state securities Laws.

 

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

 

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made any demand underthis Agreement or any other Loan Document and although such obligations of theBorrower or such Loan Party may be contingent or unmatured or are owed to abranch or office of such Lender or the L/C Issuer different from the branch oroffice holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer andtheir respective Affiliates under this Section are in addition to otherrights and remedies (including other rights of setoff) that such Lender, theL/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees tonotify the Borrower and the Administrative Agent promptly after any such setoffand application, provided that the failure to give such notice shall notaffect the validity of such setoff and application.

 

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

 

**10.10****                ****Counterparts; Integration;Effectiveness.**  This Agreement may be executed incounterparts (and by different parties hereto in different counterparts), eachof which shall constitute an original, but all of which when taken togethershall constitute a single contract.  ThisAgreement and the other Loan Documents constitute the entire contract among theparties relating to the subject matter hereof and supersede any and allprevious agreements and understandings, oral or written, relating to thesubject matter hereof.  Except asprovided in Section 4.01, this Agreement shall become effectivewhen it shall have been executed by the Administrative Agent and when theAdministrative Agent shall have received counterparts hereof that, when takentogether, bear the signatures of each of the other parties hereto.  Delivery of an executed counterpart of asignature page of this Agreement by telecopy shall be effective asdelivery of a manually executed counterpart of this Agreement.

 

**10.11****                ****Survival of Representations andWarranties.**  All representations and warranties madehereunder and in any other Loan Document or other document delivered pursuanthereto or thereto or in connection herewith or therewith shall survive theexecution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon bythe Administrative Agent and each Lender, regardless of any investigation madeby the Administrative Agent or any Lender or on their behalf andnotwithstanding that the Administrative Agent or any Lender may have had noticeor knowledge of any Default at the time of any Credit Extension, and shallcontinue in full force and effect as long as any Loan or any other Obligationhereunder shall remain unpaid or unsatisfied or any Letter of Credit shallremain outstanding.

 

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**10.12****                ****Severability.** If any provision of this Agreement or the other Loan Documents is heldto be illegal, invalid or unenforceable, (a) the legality, validity andenforceability of the remaining provisions of this Agreement and the other LoanDocuments shall not be affected or impaired thereby and (b) the partiesshall endeavor in good faith negotiations to replace the illegal, invalid orunenforceable provisions with valid provisions the economic effect of whichcomes as close as possible to that of the illegal, invalid or unenforceableprovisions.  The invalidity of aprovision in a particular jurisdiction shall not invalidate or renderunenforceable such provision in any other jurisdiction.

 

**10.13****                ****Replacement of Lenders.** If any Lender requests compensation under Section 3.04, orif the Borrower is required to pay any additional amount to any Lender or anyGovernmental Authority for the account of any Lender pursuant to Section 3.01,or if any Lender is a Defaulting Lender, then the Borrower may, at its soleexpense and effort, upon notice to such Lender and the Administrative Agent,require such Lender to assign and delegate, without recourse (in accordancewith and subject to the restrictions contained in, and consents required by, Section 10.06),all of its interests, rights and obligations under this Agreement and therelated Loan Documents to an assignee that shall assume such obligations (whichassignee may be another Lender, if a Lender accepts such assignment), providedthat:

 

(a)                                  the Borrower shall have paid to theAdministrative Agent the assignment fee specified in Section 10.06(b);

 

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

 

(c)                                  in the case of any such assignmentresulting from a claim for compensation under Section 3.04 orpayments required to be made pursuant to Section 3.01, suchassignment will result in a reduction in such compensation or paymentsthereafter; and

 

(d)                                 such assignment does not conflict withapplicable Laws.

 

A Lender shall notbe required to make any such assignment or delegation if, prior thereto, as aresult of a waiver by such Lender or otherwise, the circumstances entitling theBorrower to require such assignment and delegation cease to apply.

 

**10.14****                ****Governing Law; Jurisdiction; Etc**.

 

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

 

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

 

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DISTRICT COURT OF THEFIRST CIRCUIT, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION ORPROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THEPARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS INRESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED INSUCH MASSACHUSETTS STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCHACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHERJURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BYLAW.  NOTHING IN THIS AGREEMENT OR IN ANYOTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANYLENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION ORPROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THEBORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

 

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

 

(d)                                 SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THEMANNER PROVIDED FOR NOTICES IN SECTION 10.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THERIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLELAW.

 

**10.15****                ****Waiver of Jury Trial.** EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENTPERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY INANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THISAGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY ORTHEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NOREPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OFLITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THATIT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENTAND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS ANDCERTIFICATIONS IN THIS SECTION.

 

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

 

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

 
| ** ** | **KEANE,  INC.**                                                                                    |
|------------|-----------------------------------------------------------------------------------------------------|
|       |                                                                                                |
|       | By:                                                                                                 | /s/ John J.  Leahy |
|       | Name: John J.  Leahy                                                                                |
|       | Title:   Senior Vice President of Finance and  Administration and Chief Financial Officer |

 

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|   | **BANK  OF AMERICA, N.A., as** |
|--------|--------------------------------|
|   | Administrative  Agent          |
|   |                           |
|   | By:                            |  /s/ Matthew C. Correia |
|   | Name:                          |  Matthew C.  Correia |
|   | Title:                         |  Assistant  Vice President |
|        |                                |  |  |  |

 

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|   | **BANK  OF AMERICA, N.A.**,  as a Lender, L/C  Issuer and Swing Line Lender |
|--------|-----------------------------------------------------------------------------|
|   |                                                                        |
|   | By:                                                                         | /s/ William S.  Rowe |
|   | Name:                                                                       |  William S.  Rowe |
|   | Title:                                                                      | Principal |
|        |                                                                             |  |  |

 

----

 
| ** ** | **KEYBANK  NATIONAL ASSOCIATION**, as a  Lender and Syndication Agent |
|------------|-----------------------------------------------------------------------|
|       |                                                                  |
|       | By:                                                                   |  /s/ Jeff Kalinowksi |
|       | Name:                                                                 |  Jeff  Kalinowksi |
|       | Title:                                                                |  Sr. Vice President |
|            |                                                                       |  |  |  |

 

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| ** ** | **WACHOVIA  BANK, NATIONAL  ASSOCIATION,**as  a Lender and Documentation  Agent |
|------------|---------------------------------------------------------------------------------|
|       |                                                                            |
|       | By:                                                                             | /s/ Jiong Liu |
|       | Name:                                                                           |  Jiong Liu |
|       | Title:                                                                          |  Vice President |
|            |                                                                                 |  |  |  |

 

----

 
| ** ** | **SOVEREIGN  BANK** |
|------------|---------------------|
|       |                |
|       | By:                 | /s/ Greg  Batsevitsky |
|       | Name:               |  Greg  Batsevitsky |
|       | Title:              |  Vice President |
|            |                     |  |  |  |

 

----

 
| ** ** | **HSBC  BANK USA, NATIONAL  ASSOCIATION** |
|------------|-------------------------------------------|
|       |                                      |
|       | By:                                       |  /s/ Manuel Burgueno |
|       | Name:                                     |  Manuel  Burgueno |
|       | Title:                                    |  Vice President |
|            |                                           |  |  |  |

 

----

 
| ** ** | **WELLS  FARGO BANK, NATIONAL  ASSOCIATION** |
|------------|----------------------------------------------|
|       |                                         |
|       | By:                                          | /s/Caroline  Gates |
|       | Name:                                        |  Caroline  Gates |
|       | Title:                                       |  Vice President |
|            |                                              |  |  |  |

 

----

 
| ** ** | **CITICORP  USA, INC.** |
|------------|-------------------------|
|       |                    |
|       | By:                     |  /s/ Ross Levitsky |
|       | Name:                   |  Ross  Levitsky |
|       | Title:                  |  Director/VP |
|            |                         |  |  |  |

 

----

 
| ** ** | **MORGAN  STANLEY BANK** |
|------------|--------------------------|
|       |                     |
|       | By:                      | /s/ Daniel  Twenge |
|       | Name:                    |  Daniel  Twenge |
|       | Title:                   |  Vice President |
|            |                          |  |  |  |

 

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***SCHEDULE 2.01***

 

**COMMITMENTSAND APPLICABLE PERCENTAGES**

 
| **Lender**                              | ** ** | **Commitment** | ** **      | **Applicable  Percentage** | %                 |
|-----------------------------------------|------------|----------------|-----------------|----------------------------|-------------------|
| Bank of America,  N.A.                  |       | $              | 37,000,000      |                       | 18.500000000      |
| KeyBank National  Association           |       | $              | 34,000,000      |                       | 17.000000000      | % |
| Wachovia Bank,  National Association    |       | $              | 30,000,000      |                       | 15.000000000      | % |
| Sovereign Bank                          |       | $              | 30,000,000      |                       | 15.000000000      | % |
| HSBC Bank USA,  National Association    |       | $              | 20,000,000      |                       | 10.000000000      | % |
| Wells Fargo  Bank, National Association |       | $              | 20,000,000      |                       | 10.000000000      | % |
| Citicorp USA, Inc.                 |       | $              | 20,000,000      |                       | 10.000000000      | % |
| Morgan Stanley  Bank                    |       | $              | 9,000,000       |                       | 4.500000000       | % |
|                                    |       |           |            |                       |              |
| **Total**                               | ** ** | **$**          | **200,000,000** | ** **                 | **100.000000000** | **%** |

 

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***SCHEDULE 10.02***

 

**ADMINISTRATIVE AGENT’S OFFICE;CERTAIN ADDRESSES FOR NOTICES**

 

KEANE, INC.:

100 City Square

Boston,Massachusetts  02120

Attention:  MaryConverse, Vice President

Telephone: (617)241-9200

Telecopier:  (617)241-9507

Electronic Mail:mary_converse@keane.com

Website Address:                                               www.keane.com

 

**ADMINISTRATIVE AGENT:**

 

*AdministrativeAgent’s Office*

*(forpayments and Requests for Credit Extensions):*

Bank of America, N.A.

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

Mail Code:  NC1-001-15-04

City, State ZIPCode:  Charlotte, NC  28255-0001

Attention: Edwina Champion, Credit Service Representative

Telephone:  704-388-9114

Telecopier:  704-409-0008

Electronic Mail: edwina.champion@bankofamerica.com

Account No.:136-621-225-0600

Ref:  Keane, Inc.

ABA# 026-009-593

 

*OtherNotices as Administrative Agent**:*

Bank of America, N.A.

Agency Management

Street Address:  100 Federal Street

Mail Code:  MA5-100-11-02

City, State ZIPCode:  Boston, MA  02110

Attention: Kalens Herold

Telephone:  617-434-5249

Telecopier:  617-434-0474

Electronic Mail: kalens.herold@bankofamerica.com

 

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**L/CISSUER:**

 

Bank of America, N.A.

Trade Operations

Street Address:  One Fleet Way

Mail Code:  PA6-580-02-30

City, State ZIPCode:  Scranton, PA  18507

Attention: Alfonso Malave Jr.

Telephone:  570-330-4212

Telecopier:  570-330-4186

Electronic Mail: alfonso.malave@bankofamerica.com

 

**SWING LINE LENDER:**

 

Bank of America, N.A.

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

Mail Code:  NC1-001-15-04

City, State ZIPCode:  Charlotte, NC  28255-0001

Attention: Edwina Champion

Telephone:  704-388-9114

Telecopier:  704-409-0008

Electronic Mail: edwina.champion@bankofamerica.com

Account No.:  136-621-225-0600

Ref:  Keane, Inc.

ABA# 026-009-593

 

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***SCHEDULE 10.06***

 

**PROCESSING AND RECORDATION FEES**

 

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

 
| **Transaction**                                                                                                                                      | ** ** | **Assignment Fee** | ** ** |
|------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------|------------|
|                                                                                                                                                 |       |               |       |
| First four concurrent assignments or suballocations  to members of an Assignee Group (or from members of an Assignee Group, as  applicable)          |       | -0-                |       |
| Each additional concurrent assignment or  suballocation to a member of such Assignee Group (or from a member of such  Assignee Group, as applicable) |       | $                  | 500        |   |
|                                                                                                                                                      |            |                    |            |  |

 

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