**Exhibit 10.1**

 

 

**REVOLVINGCREDIT AGREEMENT**

 

**datedas of**

 

**June 30,2004**

 

**among**

 

**WATSONWYATT & COMPANY,**as Borrower**THELENDERS FROM TIME TO TIME PARTY HERETOandSUNTRUST BANK,**

as Administrative Agent

 

 

 

 

**SUNTRUSTROBINSON HUMPHREY,a division of SunTrust Capital Markets, Inc.,**as Lead Arranger

 

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**TABLE OF CONTENTS**

 

 
| **ARTICLE 1  DEFINITIONS;  CONSTRUCTION**                                        |   |   |
|--------------------------------------------------------------------------------------------|--------|--------|
| **Section 1.1.  Definitions**                                                    |   |   |
| **Section 1.2.  Classifications of Loans and Borrowings**                        |   |   |
| **Section 1.3.  Accounting Terms and Determination**                             |   |   |
| **Section 1.4.  Terms Generally**                                                |   |   |
|                                                                                       |   |   |
| **ARTICLE 2  AMOUNT AND  TERMS OF THE COMMITMENTS**                              |   |   |
| **Section 2.1.  General Description of Facilities**                              |   |   |
| **Section 2.2.  Revolving Loans**                                                |   |   |
| **Section 2.3.  Procedure for Revolving Borrowings**                             |   |   |
| **Section 2.4.  Swingline Commitment.**                                          |   |   |
| **Section 2.5.  Funding of Borrowings.**                                         |   |   |
| **Section 2.6.  Multi-Currency Options.**                                        |   |   |
| **Section 2.7.  Interest Elections.**                                            |   |   |
| **Section 2.8.  Optional Reduction and Termination of  Commitments.**            |   |   |
| **Section 2.9.  Repayment of Loans.**                                            |   |   |
| **Section 2.10.  Evidence of Indebtedness.**                                     |   |   |
| **Section 2.11.  Optional Prepayments**                                          |   |   |
| **Section 2.12.  Mandatory Prepayments**                                         |   |   |
| **Section 2.13.  Interest on Loans.**                                            |   |   |
| **Section 2.14.  Fees.**                                                         |   |   |
| **Section 2.15.  Computation of Interest and Fees.**                             |   |   |
| **Section 2.16.  Inability to Determine Interest Rates**                         |   |   |
| **Section 2.17.  Illegality**                                                    |   |   |
| **Section 2.18.  Increased Costs.**                                              |   |   |
| **Section 2.19.  Funding Indemnity**                                             |   |   |
| **Section 2.20.  Taxes.**                                                        |   |   |
| **Section 2.21.  Payments Generally; Pro Rata Treatment;  Sharing of Set-offs.** |   |   |
| **Section 2.22.  Letters of Credit.**                                            |   |   |
| **Section 2.23.  Increase of Commitments; Additional  Lenders.**                 |   |   |
| **Section 2.24.  Mitigation of Obligations**                                     |   |   |
| **Section 2.25.  Replacement of Lenders**                                        |   |   |
|                                                                                       |   |   |
| **ARTICLE 3  CONDITIONS  PRECEDENT TO LOANS AND LETTERS OF CREDIT**              |   |   |
| **Section 3.1.  Conditions To Effectiveness**                                    |   |   |
| **Section 3.2.  Each Credit Event**                                              |   |   |
| **Section 3.3.  Delivery of Documents**                                          |   |   |
|                                                                                       |   |   |
| **ARTICLE 4   REPRESENTATIONS AND WARRANTIES**                                   |   |   |

 

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| **Section 4.1.  Existence; Power**                           |   |   |
|------------------------------------------------------------------------|--------|--------|
| **Section 4.2.  Organizational Power; Authorization**        |   |   |
| **Section 4.3.  Governmental Approvals; No Conflicts**       |   |   |
| **Section 4.4.  Financial Statements**                       |   |   |
| **Section 4.5.  Litigation and Environmental Matters.**      |   |   |
| **Section 4.6.  Compliance with Laws and Agreements**        |   |   |
| **Section 4.7.  Investment Company Act, Etc**                |   |   |
| **Section 4.8.  Taxes**                                      |   |   |
| **Section 4.9.  Margin Regulations**                         |   |   |
| **Section 4.10.  ERISA**                                     |   |   |
| **Section 4.11.  Ownership of Property.**                    |   |   |
| **Section 4.12.  Disclosure**                                |   |   |
| **Section 4.13.  Labor Relations**                           |   |   |
| **Section 4.14.  Subsidiaries**                              |   |   |
| **Section 4.15.  Insolvency**                                |   |   |
| **Section 4.16.  OFAC**                                      |   |   |
| **Section 4.17.  Patriot Act**                               |   |   |
|                                                                   |   |   |
| **ARTICLE 5  AFFIRMATIVE  COVENANTS**                        |   |   |
| **Section 5.1.  Financial Statements and Other Information** |   |   |
| **Section 5.2.  Notices of Material Events**                 |   |   |
| **Section 5.3.  Existence; Conduct of Business**             |   |   |
| **Section 5.4.  Compliance with Laws, Etc**                  |   |   |
| **Section 5.5.  Payment of Obligations**                     |   |   |
| **Section 5.6.  Books and Records**                          |   |   |
| **Section 5.7.  Visitation,  Inspection, Etc**               |   |   |
| **Section 5.8.  Maintenance of Properties; Insurance**       |   |   |
| **Section 5.9.  Use of Proceeds and Letters of Credit**      |   |   |
| **Section 5.10.  Additional Subsidiaries.**                  |   |   |
|                                                                   |   |   |
| **ARTICLE 6  FINANCIAL  COVENANTS**                          |   |   |
| **Section 6.1.  Leverage Ratio**                             |   |   |
| **Section 6.2.  Fixed Charge Coverage Ratio**                |   |   |
| **Section 6.3.  Minimum Asset Coverage Ratio**               |   |   |
|                                                                   |   |   |
| **ARTICLE 7  NEGATIVE  COVENANTS**                           |   |   |
| **Section 7.1.  Indebtedness and Preferred Equity**          |   |   |
| **Section 7.2.  Negative Pledge**                            |   |   |
| **Section 7.3.  Fundamental Changes.**                       |   |   |
| **Section 7.4.  Investments, Loans, Etc**                    |   |   |
| **Section 7.5.  Restricted Payments**                        |   |   |
| **Section 7.6.  Sale of Assets**                             |   |   |
| **Section 7.7.  Transactions with Affiliates**               |   |   |
| **Section 7.8.  Restrictive Agreements**                     |   |   |

 

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| **Section 7.9.  Sale and Leaseback Transactions**                               |   |   |
|-------------------------------------------------------------------------------------------|--------|--------|
| **Section 7.10.  Hedging Transactions**                                         |   |   |
| **Section 7.11.  Amendment to Material Documents**                              |   |   |
| **Section 7.12.  Accounting Changes**                                           |   |   |
|                                                                                      |   |   |
| **ARTICLE 8  EVENTS OF  DEFAULT**                                               |   |   |
| **Section 8.1.  Events of Default**                                             |   |   |
|                                                                                      |   |   |
| **ARTICLE 9  THE  ADMINISTRATIVE AGENT**                                        |   |   |
| **Section 9.1.  Appointment of Administrative Agent.**                          |   |   |
| **Section 9.2.  Nature of Duties of Administrative Agent**                      |   |   |
| **Section 9.3.  Lack of Reliance on the Administrative  Agent**                 |   |   |
| **Section 9.4.  Certain Rights of the Administrative Agent**                    |   |   |
| **Section 9.5.  Reliance by Administrative Agent**                              |   |   |
| **Section 9.6.  The Administrative Agent in its Individual  Capacity**          |   |   |
| **Section 9.7.  Successor Administrative Agent.**                               |   |   |
| **Section 9.8.  Authorization to Execute other Loan  Documents**                |   |   |
|                                                                                      |   |   |
| **ARTICLE 10  MISCELLANEOUS**                                                   |   |   |
| **Section 10.1.  Notices.**                                                     |   |   |
| **Section 10.2.  Waiver; Amendments.**                                          |   |   |
| **Section 10.3.  Expenses; Indemnification.**                                   |   |   |
| **Section 10.4.  Successors and Assigns.**                                      |   |   |
| **Section 10.5.  Governing Law; Jurisdiction; Consent to  Service of Process.** |   |   |
| **Section 10.6.  WAIVER OF JURY TRIAL**                                         |   |   |
| **Section 10.7.  Right of Setoff**                                              |   |   |
| **Section 10.8.  Counterparts; Integration**                                    |   |   |
| **Section 10.9.  Survival**                                                     |   |   |
| **Section 10.10.  Severability**                                                |   |   |
| **Section 10.11.  Confidentiality**                                             |   |   |
| **Section 10.12.  Interest Rate Limitation**                                    |   |   |
| **Section 10.13.  Waiver of Effect of Corporate Seal**                          |   |   |

 

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| Schedules          |   |                                         |
|--------------------|--------|----------------------------------------------|
| Schedule I    | -      | Applicable  Margin and Applicable Percentage |
| Schedule 1.1  | -      | Foreign Currency Payment Accounts            |
| Schedule 4.5  | -      | Environmental  Matters                       |
| Schedule 4.14 | -      | Subsidiaries                                 |
| Schedule 7.1  | -      | Outstanding  Indebtedness                    |
| Schedule 7.2  | -      | Existing  Liens                              |
| Schedule 7.4  | -      | Existing  Investments                        |
|               |   |                                         |
| Exhibits           |   |                                         |
|               |   |                                         |
| Exhibit A          | -      | Form of Revolving Credit Note                |
| Exhibit B          | -      | Form of Swingline Note                       |
| Exhibit C          | -      | Form of Assignment and Acceptance            |
| Exhibit D-1        | -      | Form of Parent Guaranty Agreement            |
| Exhibit D-2        | -      | Form of Subsidiary Guaranty Agreement        |
| Exhibit E          | -      | Form of Pledge Agreement                     |
| Exhibit 2.3        | -      | Form of Notice of Revolving Borrowing        |
| Exhibit 2.4        | -      | Form of Notice of Swingline Borrowing        |
| Exhibit 2.6        | -      | Form of Continuation/Conversion              |
| Exhibit 5.1(c)     | -      | Form of Compliance Certificate               |

 

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**REVOLVINGCREDIT AGREEMENT**

 

**THIS REVOLVING CREDITAGREEMENT** (this “Agreement”) is made andentered into as of June 30, 2004, by and among WATSON WYATT & COMPANY,a Delaware corporation (the “Borrower”), the several banks and otherfinancial institutions and lenders from time to time party hereto (the “Lenders”),and SUNTRUST BANK, a Georgia banking corporation, in its capacity asadministrative agent for the Lenders (the “Administrative Agent”), asissuing bank (the “Issuing Bank”) and as swingline lender (the “SwinglineLender”).

 

**W I T N E S S E T H:**

 

**WHEREAS**, theBorrower has requested that the Lenders establish in favor of Borrower a$50,000,000 senior revolving credit facility with a $10,000,000 swinglinesubfacility  and a $15,000,000 letter ofcredit subfacility;

 

**WHEREAS**, subject tothe terms and conditions of this Agreement, the Lenders, the Issuing Bank andthe Swingline Lender to the extent of their respective Commitments as definedherein, are willing severally to establish the requested revolving creditfacility, letter of credit subfacility and the swingline subfacility in favorof the Borrower.

 

**NOW, THEREFORE**,in consideration of the premises and the mutual covenants herein contained, theBorrower, the Lenders, the Administrative Agent, the Issuing Bank and theSwingline Lender agree as follows:

 

# **ARTICLE 1**DEFINITIONS; CONSTRUCTION

# ** **

## **Section 1.1****.****           Definitions**.  In addition to the other terms definedherein, the following terms used herein shall have the meanings hereinspecified (to be equally applicable to both the singular and plural forms ofthe terms defined):

##  

“Additional Lender” shall have themeaning given to such term in Section 2.23.

 

“Adjusted LIBO Rate” shall mean, withrespect to each Interest Period for a Eurodollar Borrowing, the rate per annumobtained by dividing (i) LIBOR for such Interest Period by (ii) apercentage equal to 1.00 *minus* the Eurodollar Reserve Percentage.

 

“Administrative Questionnaire” shallmean, with respect to each Lender, an administrative questionnaire in the formprepared by the Administrative Agent and submitted to the Administrative Agentduly completed by such Lender.

 

“Affiliate” shall mean, as to anyPerson, any other Person that directly, or indirectly through one or moreintermediaries, Controls, is Controlled by, or is under common Control with,such Person.  For the purposes of thisdefinition, “Control” shall mean the power, directly

 

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or indirectly,either to (i) vote 10%or more of the securities having ordinary voting power for the election ofdirectors (or persons performing similar functions) of a Person or (ii) director cause the direction of the management and policies of a Person, whetherthrough the ability to exercise voting power, by control or otherwise.  The terms “Controlling”, “Controlled by”,and “under common Control with” have the meanings correlative thereto.

 

“Aggregate Revolving Commitment Amount”shall mean the aggregate principal amount of the Aggregate RevolvingCommitments from time to time.  On theClosing Date, the Aggregate Revolving Commitment Amount equals $50,000,000.

 

“Aggregate Revolving Commitments”shall mean, collectively, all Revolving Commitments of all Lenders at any timeoutstanding.

 

“Aggregate Subsidiary Threshold” shallmean an amount equal to ninety-eight percent (98%) of the total consolidated revenue orassets of the Consolidated Group for the most recent Fiscal Quarter as shown onthe financial statements most recently delivered or required to be deliveredpursuant to Section 5.1(a) or (b), as the case maybe.

 

“Applicable Lending Office” shallmean, for each Lender and for each Type of Loan, the “Lending Office” of suchLender (or an Affiliate of such Lender) designated for such Type of Loan in theAdministrative Questionnaire submitted by such Lender or such other office ofsuch Lender (or an Affiliate of such Lender) as such Lender may from time totime specify to the Administrative Agent and the Borrower as the office bywhich its Loans of such Type are to be made and maintained.

 

“Applicable Margin” shall mean, as ofany date, with respect to interest on all Revolving Loans outstanding on anydate or theletter of credit fee, as the case may be, a percentage per annumdetermined by reference to the applicable Leverage Ratio from time to time ineffect as set forth on Schedule I; provided, that a changein the Applicable Margin resulting from a change in the Leverage Ratio shall beeffective on the second Business Day after which the Borrower delivers thefinancial statements required by Section 5.1(a) or (b) andthe Compliance Certificate required by Section 5.1 (c); providedfurther, that if at any time the Borrower shall have failed to deliver suchfinancial statements and such Compliance Certificate when so required, theApplicable Margin shall be at Level I as set forth on Schedule Iuntil such time as such financial statements and Compliance Certificate aredelivered, at which time the Applicable Margin shall be determined as providedabove.  Notwithstanding the foregoing,the Applicable Margin from the Closing Date until the financial statements andCompliance Certificate for the Fiscal Quarter ending June 30, 2004 are required to be delivered shall be atLevel IV as set forth on Schedule I.

 

“Applicable Percentage” shall mean, asof any date, with respect to the****commitment fee as of any date, thepercentage per annum determined by reference to the applicable Leverage Ratioin effect on such date as set forth on Schedule I; provided,that a change in the Applicable Percentage resulting from a change in theLeverage Ratio shall be effective on the second Business Day after which theBorrower delivers the financial statements required by Section 5.1(a)or (b) and the Compliance Certificate required by Section 5.1(c);providedfurther, that if

 

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at any timethe Borrower shall have failed to deliver such financial statements and suchCompliance Certificate, the Applicable Percentage shall be at Level I as setforth on Schedule I until such time as such financial statementsand Compliance Certificate are delivered, at which time the ApplicablePercentage shall be determined as provided above.  Notwithstanding the foregoing, the Applicable Percentage for the commitment fee from the Closing Dateuntil the financial statements and Compliance Certificate for the FiscalQuarter ending June 30, 2004are required to be delivered shall be at Level IV as set forth on Schedule I.

 

“Approved Fund” shall mean any Person(other than a natural Person) that is (or will be) engaged in making,purchasing, holding or otherwise investing in commercial loans and similarextensions of credit in the ordinary course of its business and that isadministered or managed by (i) a Lender, (ii) an Affiliate of a Lender or (iii)an entity or an Affiliate of an entity that administers or manages a Lender.

 

“Assignment and Acceptance” shall meanan assignment and acceptance entered into by a Lender and an assignee (with theconsent of any party whose consent is required by Section 10.4(b))and accepted by the Administrative Agent, in the form of Exhibit Cattached hereto or any other form approved by the Administrative Agent.

 

“Australian Dollars” and the sign“aus$” shall mean lawful money of the Commonwealth of Australia.

 

“Available Foreign Currency” shallmean (i) Euros, Japanese Yen, Australian Dollars, Canadian Dollars, New ZealandDollars, Hong Kong Dollars and (ii) any other freely available currency whichthe Administrative Agent customarily lends in and which is freely transferableand freely convertible into Dollars and in which dealings in deposits arecarried on in the London interbank market, which shall be requested by theBorrower and approved by the Administrative Agent.

 

“Availability Period*”*shall mean the period from the Closing Date to the Revolving Commitment TerminationDate.

 

“Base Rate” shall mean the higher of(i) the per annum rate which the Administrative Agent publicly announcesfrom time to time to be its prime lending rate, as in effect from time to time,and (ii) the Federal Funds Rate, as in effect from time to time, *plus*one-half of one percent (0.50%).  TheAdministrative Agent’s prime lending rate is a reference rate and does notnecessarily represent the lowest or best rate charged to customers.  The Administrative Agent may make commercialloans or other loans at rates of interest at, above or below the AdministrativeAgent’s prime lending rate.  Each changein the Administrative Agent’s prime lending rate shall be effective from andincluding the date such change is publicly announced as being effective.

 

“Borrowing”****shall mean a borrowing consisting of (i) Loans of the sameClass and Type, made, converted or continued on the same date and in the caseof Eurodollar Loans, as to which a single Interest Period is in effect, or (ii)a Swingline Loan.

 

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“Business Day” shall mean (i) any dayother than a Saturday, Sunday or other day on which commercial banks inAtlanta, Georgia andNew York, New York are authorized or required by law to close and (ii) ifsuch day relates to a Borrowing of, a payment or prepayment of principal orinterest on, a conversion of or into, or an Interest Period for, a EurodollarLoan or a notice with respect to any of the foregoing, any day on whichdealings in Dollars or the applicable Available Foreign Currency are carried onin the London interbank market.

 

“Canadian Loan Program” shall mean theBorrower’s employee loan program established for the benefit of its Canadianemployees.

 

“Capital Expenditures” shall mean forany period, without duplication, (i) the additions to property, plant andequipment and other capital expenditures of the Consolidated Group that are (orwould be) set forth on a consolidated statement of cash flows of theConsolidated Group for such period prepared in accordance with GAAP and (ii)Capital Lease Obligations incurred by the Consolidated Group during suchperiod.

 

“Capital Lease Obligations” of anyPerson shall mean all obligations of such Person to pay rent or other amountsunder any lease (or other arrangement conveying the right to use) of real orpersonal property, or a combination thereof, which obligations are required tobe classified and accounted for as capital leases on a balance sheet of suchPerson under GAAP, and the amount of such obligations shall be the capitalizedamount thereof determined in accordance with GAAP.

 

“Capital Stock” shall mean anynon-redeemable capital stock (or in the case of a partnership or limitedliability company, the partners’ or members’ equivalent equity interest) of theBorrower or any of its Subsidiaries (to the extent issued to a Person otherthan the Borrower), whether common or preferred.

 

“Change in Control” shall mean theoccurrence of one or more of the following events:  (a) any sale, lease, exchange or other transfer (in a singletransaction or a series of related transactions) of all or substantially all ofthe assets of the Parent Guarantor or Borrower to any Person or “group” (withinthe meaning of the Securities Exchange Act of 1934 and the rules of theSecurities and Exchange Commission thereunder in effect on the date hereof),(b) the acquisition of ownership, directly or indirectly, beneficially or ofrecord, by any Person or “group” (within the meaning of the Securities ExchangeAct of 1934 and the rules of the Securities and Exchange Commission thereunderas in effect on the date hereof) of 20% or more of the outstanding shares ofthe voting stock of the Parent Guarantor or Borrower; or (c) occupation of amajority of the seats (other than vacant seats) on the board of directors ofthe Parent Guarantor or Borrower by Persons who were neither (i) nominated bythe current board of directors nor (ii) appointed by the current directors.

 

“Change in Law” shall mean (i) theadoption of any applicable law, rule or regulation after the date of thisAgreement, (ii) any change in any applicable law, rule or regulation, or anychange in the interpretation or application thereof, by any GovernmentalAuthority after the date of this Agreement, or (iii) compliance by any Lender(or its Applicable Lending Office) or the

 

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Issuing Bank(or for purposes of Section 2.18(b), by such Lender’s or theIssuing Bank’s parent corporation, if applicable) with any request, guidelineor directive (whether or not having the force of law) of any GovernmentalAuthority made or issued after the date of this Agreement.

 

“Class”,****when used in reference to any Loan or Borrowing, refers towhether such Loan, or the Loans comprising such Borrowing, are Revolving Loansor Swingline Loans and when used in reference to any Commitment, refers towhether such Commitment is a Revolving Commitment, or a Swingline Commitment.

 

“Closing Date” shall mean the date onwhich the conditions precedent set forth in Section 3.1 and Section 3.2have been satisfied or waived in accordance with Section 10.2.

 

“Code” shall mean the Internal RevenueCode of 1986, as amended and in effect from time to time.

 

“Commitment” shall mean a RevolvingCommitment or a Swingline Commitment or a combination thereof (as the contextshall permit or require).

 

“Compliance Certificate” shall mean acertificate from the principal executive officer and the principal financialofficer of the Borrower in the form of, and containing the certifications setforth in, the certificate attached hereto as Exhibit 5.1(c).

 

“Consolidated EBITDA” shall mean, forthe Consolidated Group for any period, an amount equal to the sum of (i)Consolidated Net Income for such period *plus* (ii) to the extent deducted indetermining Consolidated Net Income for such period, (A) Consolidated InterestExpense, (B) income tax expense determined on a consolidated basis inaccordance with GAAP, (C) depreciation and amortization determined on aconsolidated basis in accordance with GAAP, and (D) all other non-cashcharges acceptable to the Administrative Agent, determined on a consolidatedbasis in accordance with GAAP, in each case for such period.

 

“Consolidated EBITR” shall mean, forthe Consolidated Group for any period, an amount equal to the sum of (i)Consolidated EBITDA for such period *less*,to the extent added to Consolidated Net Income in determining ConsolidatedEBITDA for such period, depreciation and amortization determined on aconsolidated basis in accordance with GAAP, *plus*(iii) Consolidated Lease Expense for such period.

 

“Consolidated Group” shall mean theParent Guarantor and its consolidated Subsidiaries (including the Borrower), asdetermined in accordance with GAAP.

 

“Consolidated Interest Expense” shallmean, for the Consolidated Group for any period determined on a consolidatedbasis in accordance with GAAP, the sum of (i) total interest expense, includingwithout limitation the interest component of any payments in respect of CapitalLease Obligations capitalized or expensed during such period****(whether or not actually paid during suchperiod)*****plus*(ii) the net amountpayable (or *minus*the net amount receivable) under Hedging Agreements during such period (whetheror not actually paid or received during such period).

 

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“Consolidated Lease Expense” shallmean, for the Consolidated Group for any period, the aggregate amount of fixedand contingent rentals payable with respect to leases of real and personalproperty (excluding Capital Lease Obligations) determined on a consolidatedbasis in accordance with GAAP for such period.

 

“Consolidated Net Income” shall mean,for the Consolidated Group for any period, the net income (or loss) of the ConsolidatedGroup for such period determined on a consolidated basis in accordance withGAAP, but excluding therefrom (to the extent otherwise included therein)(i) any extraordinary gains or losses, (ii) any gains attributable towrite-ups of assets, (iii) any equity interest of any member of theConsolidated Group in the unremitted earnings of any Person that is not aSubsidiary and (iv) any income (or loss) of any Person accrued prior to thedate it becomes a Subsidiary or is merged into or consolidated with any memberof the Consolidated Group on the date that such Person’s assets are acquired byany member of the Consolidated Group.

 

“Contractual Obligation” of any Personshall mean any provision of any security issued by such Person or of anyagreement, instrument or undertaking under which such Person is obligated or bywhich it or any of the property in which it has an interest is bound.

 

“CSAP” shall mean the Borrower’sCanadian Separation Allowance Plan established for the benefit of theBorrower’s Canadian employees in connection with the Canadian Loan Program.

 

“Default” shall mean any condition orevent that, with the giving of notice or the lapse of time or both, wouldconstitute an Event of Default.

 

“Default Interest” shall have themeaning set forth in Section 2.13(c).

 

“Domestic Subsidiary” shall mean anySubsidiary that is incorporated or organized under the laws of any State of theUnited States or the District of Columbia.

 

“Dollar(s)” and the sign “$” shallmean lawful money of the United States of America.

 

“Dollar Equivalent” shall mean, on anydate, with respect to an amount denominated in any Available Foreign Currency,the amount of Dollars into which the Administrative Agent could, in accordancewith its practice, convert such amount of Available Foreign Currency in theinterbank foreign exchange market at its spot rate of exchange (inclusive ofall reasonably related costs of conversion, if any, that are actually incurred)at or about 10:00 a.m. (Atlanta, Georgia time), on such date.

 

“Eligible Assignee” shall mean (i) aLender; (ii) an Affiliate of a Lender; (iii) an Approved Fund; and (iv) anyother Person (other than a natural Person) approved by the AdministrativeAgent, the Issuing Bank, and unless (x) such Person is taking delivery of anassignment in connection with physical settlement of a credit derivativestransaction or (y) an Event of Default has occurred and is continuing, theBorrower (each such approval not to be unreasonably withheld or delayed).  If the consent of the Borrower to anassignment or to an

 

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EligibleAssignee is required hereunder (including a consent to an assignment which doesnot meet the minimum assignment thresholds specified in paragraph (b)(i) of Section 10.4),the Borrower shall be deemed to have given its consent five Business Days afterthe date notice thereof has actually been delivered by the assigning Lender(through the Administrative Agent) to the Borrower, unless such consent isexpressly refused by the Borrower prior to such fifth Business Day.

 

“Employee Stock Loans” shall meanloans by Bank of America, N.A. to various employees of the Borrower that areguaranteed by the Borrower.

 

“Environmental Laws” shall mean alllaws, rules, regulations, codes, ordinances, orders, decrees, judgments,injunctions, notices or binding agreements issued, promulgated or entered intoby or with any Governmental Authority, relating in any way to the environment,preservation or reclamation of natural resources, the management, Release orthreatened Release of any Hazardous Material or to health and safety matters.

 

“Environmental Liability” shall meanany liability, contingent or otherwise (including any liability for damages,costs of environmental investigation and remediation, costs of administrativeoversight, fines, natural resource damages, penalties or indemnities), of theBorrower or any Subsidiary directly or indirectly resulting from or based upon(i) any actual or alleged violation of any Environmental Law, (ii) thegeneration, use, handling, transportation, storage, treatment or disposal ofany Hazardous Materials, (iii) any actual or alleged exposure to any HazardousMaterials, (iv) the Release or threatened Release of any Hazardous Materials or(v) any contract, agreement or other consensual arrangement pursuant to whichliability is assumed or imposed with respect to any of the foregoing.

 

“ERISA” shall mean the EmployeeRetirement Income Security Act of 1974, as amended from time to time, and anysuccessor statute.

 

“ERISA Affiliate” shall mean any tradeor business (whether or not incorporated), which, together with any member ofthe Consolidated Group, is treated as a single employer underSection 414(b) or (c) of the Code or, solely for the purposes ofSection 302 of ERISA and Section 412 of the Code, is treated as asingle employer under Section 414 of the Code.

 

“ERISA Event”**shall mean (i) any“reportable event”, as defined in Section 4043 of ERISA or the regulationsissued thereunder with respect to a Plan (other than an event for which the30-day notice period is waived); (ii) the existence with respect to any Plan ofan “accumulated funding deficiency” (as defined in Section 412 of the Codeor Section 302 of ERISA), whether or not waived; (iii) the filing pursuantto Section 412(d) of the Code or Section 303(d) of ERISA of anapplication for a waiver of the minimum funding standard with respect to anyPlan; (iv) the incurrence by any member of the Consolidated Group or any of itsERISA Affiliates of any liability under Title IV of ERISA with respect to thetermination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliatefrom the PBGC or a plan administrator appointed by the PBGC of any noticerelating to an intention to terminate any Plan or Plans or to appoint a trusteeto administer any Plan; (vi) the incurrence by any member of the Consolidated 

 

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Group or anyof its ERISA Affiliates of any liability with respect to the withdrawal orpartial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt byany member of the Consolidated Group or any ERISA Affiliate of any notice, orthe receipt by any Multiemployer Plan from any member of the Consolidated Groupor any ERISA Affiliate of any notice, concerning the imposition of WithdrawalLiability or a determination that a Multiemployer Plan is, or is expected tobe, insolvent or in reorganization, within the meaning of Title IV of ERISA.

 

“Euros” and the sign “€” shall meanlawful money of the European Union.

 

“Eurodollar” when used in reference toany Loan or Borrowing, refers to whether such Loan, or the Loans comprisingsuch Borrowing, bears interest at a rate determined by reference to theAdjusted LIBO Rate.

 

“Eurodollar Reserve Percentage” shallmean the aggregate of the maximum reserve percentages (including, withoutlimitation, any emergency, supplemental, special or other marginal reserves)expressed as a decimal (rounded upwards to the next 1/100th of 1%)in effect on any day to which the Administrative Agent is subject with respectto the Adjusted LIBO Rate pursuant to regulations issued by the Board ofGovernors of the Federal Reserve System (or any Governmental Authoritysucceeding to any of its principal functions) with respect to eurocurrencyfunding (currently referred to as “eurocurrency liabilities” under RegulationD).  Eurodollar Loans shall be deemed toconstitute eurocurrency funding and to be subject to such reserve requirementswithout benefit of or credit for proration, exemptions or offsets that may beavailable from time to time to any Lender under Regulation D.  The Eurodollar Reserve Percentage shall beadjusted automatically on and as of the effective date of any change in anyreserve percentage.

 

“Event of Default” shall have themeaning provided in Article 8.

 

**“**Excluded Taxes***”***shall mean with respect to the Administrative Agent,any Lender, the Issuing Bank or any other recipient of any payment to be madeby or on account of any obligation of the Borrower hereunder, (a) income orfranchise taxes imposed on (or measured by) its net income by the United Statesof America, or by the jurisdiction under the laws of which such recipient isorganized or in which its principal office is located or, in the case of anyLender, in which its applicable lending office is located, (b) any branchprofits taxes imposed by the United States of America or any similar taximposed by any other jurisdiction in which any Lender is located and (c) in thecase of a Foreign Lender, any withholding tax that (i) is imposed on amountspayable to such Foreign Lender at the time such Foreign Lender becomes a partyto this Agreement, (ii) is imposed on amounts payable to such Foreign Lender atany time that such Foreign Lender designates a new lending office, other thantaxes that have accrued prior to the designation of such lending office thatare otherwise not Excluded Taxes, and (iii) is attributable to such ForeignLender’s failure to comply with Section 2.20(e).

 

“Executive Summary” shall mean theConfidential Executive Summary dated May 2004 relating to theConsolidated Group and the transactions contemplated by this Agreement and theother Loan Documents.

 

8

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“Existing Lenders” shall mean Bank ofAmerica, N.A., The Bank of Nova Scotia, Comerica Bank, SunTrust Bank, AllfirstBank, Firstar Bank, National Association, CIBC Inc. and any other lender underthe Credit Agreement dated June 25, 2002 by and among Borrower, WatsonWyatt & Company Holdings and certain of its domestic subsidiaries, asguarantors, the banks party thereto, the Bank of Nova Scotia and Comerica Bank,as co-syndication agents, SunTrust Bank, as documentation agent and Bank ofAmerica, N.A., as agent.

 

“Federal Funds Rate” shall mean, forany day, the rate per annum (rounded upwards, if necessary, to the next 1/100thof 1%) equal to the weighted average of the rates on overnight Federal fundstransactions with member banks of the Federal Reserve System arranged byFederal funds brokers, as published by the Federal Reserve Bank of New York onthe next succeeding Business Day or if such rate is not so published for anyBusiness Day, the Federal Funds Rate for such day shall be the average roundedupwards, if necessary, to the next 1/100th of 1% of the quotations for such dayon such transactions received by the Administrative Agent from three Federalfunds brokers of recognized standing selected by the Administrative Agent.

 

“Fee Letter” shall mean that certainfee letter, dated as of May 7, 2004, executed by SunTrust Robinson Humphrey, a divisionof SunTrust Capital Markets, Inc., and SunTrust Bank and accepted by Borrower.

 

“Fiscal Quarter” shall mean any fiscalquarter of the Consolidated Group.

 

“Fiscal Year” shall mean any fiscalyear of the Consolidated Group.

 

“Fixed Charge Coverage Ratio” shallmean, as of any date, the ratio of (a) Consolidated EBITR to (b) the sum of (i)Consolidated Interest Expense plus (ii) Consolidated Lease Expense, in each casemeasured for the four consecutive Fiscal Quarters ending on or immediatelyprior to such date.

 

“Foreign Currency Payment Accounts”shall mean those bank accounts specified on Schedule 1.1. for receipt ofpayments in Available Foreign Currencies, both from the Lenders in accordancewith Section 2.5 and the Borrower in accordance with Section 2.21,or such other bank accounts as may hereafter be specified by the AdministrativeAgent in writing to the Borrower and the Lenders as being the applicable bank accountsfor receipt of payments in such currencies.

 

“Foreign Currency Sublimit” shall meanthe Dollar Equivalent of $15,000,000, as such amount may be reduced from timeto time pursuant to the terms of this Agreement.

 

“Foreign Lender”******shall mean any Lender that is not a United Statesperson under Section 7701(a)(3) of the Code.

 

“Foreign Subsidiary” shall mean anySubsidiary that is organized under the laws of a jurisdiction other than one ofthe fifty states of the United States or the District of Columbia.

 

9

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“GAAP” shall mean generally acceptedaccounting principles in the United States applied on a consistent basis andsubject to the terms of Section 1.3.

 

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

 

“Guarantee” of or by any Person (the “guarantor”)shall mean any obligation, contingent or otherwise, of the guarantorguaranteeing or having the economic effect of guaranteeing any Indebtedness orother obligation of any other Person (the “primary obligor”) in anymanner, whether directly or indirectly and including any obligation, direct orindirect, of the guarantor (i) to purchase or pay (or advance or supply fundsfor the purchase or payment of) such Indebtedness or other obligation or topurchase (or to advance or supply funds for the purchase of) any security forthe payment thereof, (ii) to purchase or lease property, securities or servicesfor the purpose of assuring the owner of such Indebtedness or other obligationof the payment thereof, (iii) to maintain working capital, equity capital orany other financial statement condition or liquidity of the primary obligor soas to enable the primary obligor to pay such Indebtedness or other obligationor (iv) as an account party in respect of any letter of credit or letter ofguaranty issued in support of such Indebtedness or obligation; provided,that the term “Guarantee” shall not include endorsements for collection ordeposits in the ordinary course of business. The amount of any Guarantee shall be deemed to be an amount equal to thestated or determinable amount of the primary obligation in respect of whichGuarantee is made or, if not so stated or determinable, the maximum reasonablyanticipated liability in respect thereof (assuming such Person is required toperform thereunder) as determined by such Person in good faith.  The term “Guarantee” used as a verb has acorresponding meaning.

 

“Hazardous Materials” shall mean allexplosive or radioactive substances or wastes and all hazardous or toxicsubstances, wastes or other pollutants, including petroleum or petroleumdistillates, asbestos or asbestos containing materials, polychlorinatedbiphenyls, radon gas, infectious or medical wastes and all other substances orwastes of any nature regulated pursuant to any Environmental Law.

 

“Hedging Obligations” of any Personshall mean any and all obligations of such Person, whether absolute orcontingent and howsoever and whensoever created, arising, evidenced or acquiredunder (i) any and all Hedging Transactions, (ii) any and all cancellations, buybacks, reversals, terminations or assignments of any Hedging Transactions and(iii) any and all renewals, extensions and modifications of any HedgingTransactions and any and all substitutions for any Hedging Transactions.

 

“Hedging Transaction” of any Personshall mean any transaction (including an agreement with respect thereto) nowexisting or hereafter entered into by such Person that is a rate swap, basisswap, forward rate transaction, commodity swap, interest rate option, foreignexchange transaction, cap transaction, floor transaction, collateraltransaction, forward transaction,

 

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currency swaptransaction, cross-currency rate swap transaction, currency option or any othersimilar transaction (including any option with respect to any of thesetransactions) or any combination thereof, whether linked to one or more interestrates, foreign currencies, commodity prices, equity prices or other financialmeasures.

 

“Hong Kong Dollars” and the sign “hk$”shall mean lawful money of the Hong Kong Special Administrative Region.

 

“Indebtedness” of any Person shallmean, without duplication (i) all obligations of such Person for borrowedmoney, (ii) all obligations of such Person evidenced by bonds, debentures,notes or other similar instruments, (iii) all obligations of such Person inrespect of the deferred purchase price of property or services (other thantrade payables incurred in the ordinary course of business), (iv) allobligations of such Person under any conditional sale or other title retentionagreement(s) relating to property acquired by such Person, (v) all CapitalLease Obligations of such Person, (vi) all obligations, contingent orotherwise, of such Person in respect of letters of credit, acceptances orsimilar extensions of credit, (vii) all Guarantees of such Person of thetype of Indebtedness described in clauses (i) through (vi) above, (viii) allIndebtedness of a third party secured by any Lien on property owned by suchPerson, whether or not such Indebtedness has been assumed by such Person, (ix)all obligations of such Person, contingent or otherwise, to purchase, redeem,retire or otherwise acquire for value any common stock of such Person, (x)Off-Balance Sheet Liabilities and (xi) all Hedging Obligations.** **TheIndebtedness of any Person shall include the Indebtedness of any partnership orjoint venture in which such Person is a general partner or a joint venturer,but only to the extent that there is direct or indirect recourse to such Person(as a guarantor, partner or otherwise) for payment thereof.

 

“Indemnified Taxes” shall mean Taxesother than Excluded Taxes.

 

“Interest Coverage Ratio” shall mean,as of any date, the ratio of (i) Consolidated EBITDA for the four consecutiveFiscal Quarters ending on or immediately prior to such date to (ii)Consolidated Interest Expense for the four consecutive Fiscal Quarters endingon or immediately prior to such date.

 

“Interest Period***”*** shall mean with respect to (i) any SwinglineBorrowing, such period as the Swingline Lender and the Borrower shall mutuallyagree and (ii) any Eurodollar Borrowing, a period of one, two, three or sixmonths; provided, that:

 

#### (i)            the initial Interest Period for suchBorrowing shall commence on the date of such Borrowing (including the date ofany conversion from a Borrowing of another Type), and each Interest Periodoccurring thereafter in respect of such Borrowing shall commence on the day onwhich the next preceding Interest Period expires;

####  

#### (ii)           if any Interest Period would otherwise endon a day other than a Business Day, such Interest Period shall be extended tothe next succeeding Business Day, unless such Business Day falls in anothercalendar month, in which case such Interest Period would end on the nextpreceding Business Day;

####  

#### 11

#### 

####  

#### (iii)          any Interest Period which begins on the lastBusiness Day of a calendar month or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Periodshall end on the last Business Day of such calendar month; and

####  

#### (iv)          no Interest Period may extend beyond theRevolving Commitment Termination Date.

####  

“Issuing Bank” shall mean SunTrustBank or any other Lender, each in its capacity as an issuer of Letters ofCredit pursuant to Section 2.22.

 

“Japanese Yen” and the sign “¥” shallmean lawful money of Japan.

 

“LC Commitment” shall mean thatportion of the Aggregate Revolving Commitment Amount that may be used by theBorrower for the issuance of Letters of Credit in an aggregate face amount notto exceed $15,000,000.

 

“LC Disbursement” shall mean a paymentmade by the Issuing Bank pursuant to a Letter of Credit.

 

“LC Documents” shall mean the Lettersof Credit and all applications, agreements and instruments relating to theLetters of Credit.

 

“LC Exposure” shall mean, at any time,the sum of (i) the aggregate undrawn amount of all outstanding Letters ofCredit at such time, *plus* (ii) the aggregate amount of allLC Disbursements that have not been reimbursed by or on behalf of the Borrowerat such time.  The LC Exposure of anyLender shall be its Pro Rata Share of the total LC Exposure at such time.

 

“Lead Arranger” shall mean SunTrustRobinson Humphrey, Inc., a division of SunTrust Capital Markets, Inc.

 

“Lender Joinder” shall have themeaning set forth in Section 2.23.

 

“Lenders” shall have the meaningassigned to such term in the opening paragraph of this Agreement and shallinclude, where appropriate, the Swingline Lender and each Additional Lenderthat joins this Agreement pursuant to Section 2.23.

 

“Letter of Credit” shall mean anystand-by letter of credit issued pursuant to Section 2.22 by theIssuing Bank for the account of the Borrower pursuant to the LC Commitment.

 

“Leverage Ratio” shall mean, as of anydate, the ratio of (i) Total Debt as of such date to (ii) Consolidated EBITDAfor the four consecutive quarters ending on or immediately prior to such date.

 

“LIBOR” shall mean, for any applicableInterest Period with respect to any Eurodollar Loan, the British Bankers’Association Interest Settlement Rate per annum for deposits in

 

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Dollars orapplicable Available Foreign Currency for a period equal to such InterestPeriod appearing on the display designated as Page 3750 on the Dow JonesMarkets Service (or such other page on that service or such other servicedesignated by the British Bankers’ Association for the display of suchAssociation’s Interest Settlement Rates for Dollar or the applicable AvailableForeign Currency deposits) as of 11:00 a.m. (London, England time) on theday that is two Business Days prior to the first day of the Interest Period orif such Page 3750 is unavailable for any reason at such time, the rate whichappears on the Reuters Screen ISDA Page as of such date and such time; provided,that if the Administrative Agent determines that the relevant foregoing sourcesare unavailable for the relevant Interest Period, LIBOR shall mean the rate ofinterest determined by the Administrative Agent to be the average (roundedupward, if necessary, to the nearest 1/100th of 1%) of the rates perannum at which deposits in Dollars or the applicable Available Foreign Currencyare offered to the Administrative Agent two (2) Business Days preceding thefirst day of such Interest Period by leading banks in the London interbankmarket as of 10:00 a.m. (Atlanta, Georgia time) for delivery on the first dayof such Interest Period, for the number of days comprised therein and in anamount comparable to the amount of the Eurodollar Loan of the AdministrativeAgent.

 

“Lien” shall mean any mortgage,pledge, security interest, lien (statutory or otherwise), charge, encumbrance,hypothecation, assignment, deposit arrangement, or other arrangement having thepractical effect of the foregoing or any preference, priority or other securityagreement or preferential arrangement of any kind or nature whatsoever(including any conditional sale or other title retention agreement and anycapital lease having the same economic effect as any of the foregoing).

 

“Loan Documents” shall mean,collectively, this Agreement, the Notes (if any), the LC Documents, the ParentGuaranty Agreement, the Subsidiary Guaranty Agreement, the Pledge Agreements,all Notices of Borrowing, all Notices of Conversion/Continuation, allCompliance Certificates and any and all other instruments, agreements,documents and writings executed in connection with any of the foregoing.

 

“Loan Parties” shall mean theBorrower, the Parent Guarantor and the Subsidiary Loan Parties.

 

“Loans” shall mean all Revolving Loansand Swingline Loans in the aggregate or individually, as the context shallrequire.

 

“Margined Receivables from Clients”shall mean, as of any date, for the Consolidated Group determined on aconsolidated basis in accordance with GAAP, the sum of (i) 100% of billedreceivables from clients, net of standard allowances for doubtful accounts *plus* (ii) 75% of unbilled receivables fromclients, net of standard allowances for doubtful accounts.

 

“Material Adverse Effect” shall mean,with respect to any event, act, condition or occurrence of whatever nature(including any adverse determination in any litigation, arbitration, orgovernmental investigation or proceeding), whether singularly or in conjunctionwith any other event or events, act or acts, condition or conditions,occurrence or occurrences whether or

 

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not related, amaterial adverse change in, or a material adverse effect on, (i) thebusiness, results of operations, financial condition, assets, liabilities orprospects of the Consolidated Group taken as a whole, (ii) the ability ofthe Loan Parties to perform any material obligations under the Loan Documents, (iii) the rights and remedies ofthe Administrative Agent, the Issuing Bank, Swingline Lender, and the Lendersunder any of the Loan Documents or (iv) the legality, validity orenforceability of any of the Loan Documents.

 

“Material Indebtedness” shall meanIndebtedness (other than the Loans and Letters of Credit) and HedgingObligations of any member of the Consolidated Group, individually or in anaggregate principal amount exceeding $5,000,000.  For purposes of determining the amount of attributed Indebtednessfrom Hedging Obligations, the “principal amount” of any Hedging Obligations atany time shall be the Net Mark-to-Market Exposure of such Hedging Obligations.

 

“Material Subsidiary”****shall mean a Subsidiary of the Parent (i)the accounts receivable of which comprise two percent (2%) or more of theconsolidated accounts receivable of the Consolidated Group or (ii) the assetsof which comprise two percent (2%) or more of the consolidated assets of theConsolidated Group.

 

“Minimum Asset Coverage Ratio” shallmean at any time the ratio of Margined Receivables from Clients to Total Debtat such time.

 

“Moody’s” shall mean Moody’s InvestorsService, Inc.

 

“Multiemployer Plan” shall have themeaning set forth in Section 4001(a)(3) of ERISA.

 

“Net Mark-to-Market Exposure” of anyPerson shall mean, as of any date of determination with respect to any HedgingObligation, the excess (if any) of all unrealized losses over all unrealizedprofits of such Person arising from such Hedging Obligation.  “Unrealized losses” shall mean the fairmarket value of the cost to such Person of replacing the Hedging Transactiongiving rise to such Hedging Obligation as of the date of determination(assuming the Hedging Transaction were to be terminated as of that date), and“unrealized profits” means the fair market value of the gain to such Person ofreplacing such Hedging Transaction as of the date of determination (assumingsuch Hedging Transaction were to be terminated as of that date).

 

“New Zealand Dollars” and the sign“nz$” shall mean lawful money of New Zealand.

 

“Notes” shall mean, collectively, theRevolving Credit Notes and the Swingline Note.

 

“Notices of Borrowing” shall mean,collectively, the Notices of Revolving Borrowing, and the Notices of SwinglineBorrowing.

 

“Notice of Conversion/Continuation”****shall mean the notice given by theBorrower to the Administrative Agent in respect of the conversion orcontinuation of an outstanding Borrowing as provided in Section 2.8(b).

 

“Notice of Revolving Borrowing” shallhave the meaning as set forth in Section 2.3.

 

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“Notice of Swingline Borrowing”******shall have the meaning as set forth in Section 2.4.

 

“Obligations” shall mean all amountsowing by the Borrower to the Administrative Agent, the Issuing Bank or anyLender (including the Swingline Lender) pursuant to or in connection with thisAgreement or any other Loan Document, including without limitation, allprincipal, interest (including any interest accruing after the filing of anypetition in bankruptcy or the commencement of any insolvency, reorganization orlike proceeding relating to the Borrower, whether or not a claim forpost-filing or post-petition interest is allowed in such proceeding), allreimbursement obligations, fees, expenses, indemnification and reimbursementpayments, costs and expenses (including all fees and expenses of counsel to theAdministrative Agent, the Issuing Bank and any Lender (including the SwinglineLender) incurred pursuant to this Agreement or any other Loan Document),whether direct or indirect, absolute or contingent, liquidated or unliquidated,now existing or hereafter arising hereunder or thereunder, and all HedgingObligations owed to the Administrative Agent, any Lender or any of theirAffiliates incurred in order to limit interest rate or fee fluctuation withrespect to the Loans and Letters of Credit, and all obligations and liabilitiesincurred in connection with collecting and enforcing the foregoing, togetherwith all renewals, extensions, modifications or refinancings thereof.

 

“Off-Balance Sheet Liabilities” of anyPerson shall mean (i) any repurchase obligation or liability of such Personwith respect to accounts or notes receivable sold by such Person, (ii) anyliability of such Person under any sale and leaseback transactions that do notcreate a liability on the balance sheet of such Person, (iii) any Synthetic LeaseObligation or (iv) any obligation arising with respect to any other transactionwhich is the functional equivalent of or takes the place of borrowing but whichdoes not constitute a liability on the balance sheet of such Person.

 

“OSHA” shall mean the OccupationalSafety and Health Act of 1970, as amended from time to time, and any successorstatute.

 

“Other Taxes” shall mean any and allpresent or future stamp or documentary taxes or any other excise or propertytaxes, charges or similar levies arising from any payment made hereunder orfrom the execution, delivery or enforcement of, or otherwise with respect to,this Agreement or any other Loan Document.

 

“Parent Guarantor” shall mean WatsonWyatt & Company Holdings, a Delaware corporation.

 

“Parent Guaranty Agreement” shall meanthe Parent Guaranty Agreement, dated as of the date hereof and substantially inthe form of Exhibit D-1, made by the Parent Guarantor in favor of theAdministrative Agent for the benefit of the Lenders.

 

“Participant” shall have the meaningset forth in Section 10.4(d).

 

“Payment Office” shall mean the officeof the Administrative Agent located at 303 Peachtree Street, N.E., Atlanta,Georgia 30308, or such other location as to which the Administrative Agentshall have given written notice to the Borrower and the other Lenders.

 

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“PBGC”****shall mean the Pension Benefit Guaranty Corporation referredto and defined in ERISA, and any successor entity performing similar functions.

 

“Permitted CSAP Loan” shall mean aloan extended under the Canadian Loan Program to one of the Borrower’s Canadianemployees for which a Separation Allowance Account is maintained having abalance not in excess of 90% of the dollar amount credited from time to time tosuch account.

 

“Permitted Encumbrances” shall mean:

 

#### (i)             Liens imposed by law for taxes not yet dueor which are being contested in good faith by appropriate proceedings and withrespect to which adequate reserves are being maintained in accordance withGAAP;

####  

#### (ii)            statutory Liens of landlords, carriers,warehousemen, mechanics, materialmen and similar Liens arising by operation oflaw in the ordinary course of business for amounts not yet due or which arebeing contested in good faith by appropriate proceedings and with respect towhich adequate reserves are being maintained in accordance with GAAP;

####  

#### (iii)           pledges and deposits made in the ordinarycourse of business in compliance with workers’ compensation, unemploymentinsurance and other social security laws or regulations;

####  

#### (iv)           liens and deposits to secure the performanceof bids, trade contracts, leases, statutory obligations, surety and appealbonds, performance bonds and other obligations of a like nature, in each casein the ordinary course of business;

####  

#### (v)            judgment and attachment liens not givingrise to an Event of Default or Liens created by or existing from any litigationor legal proceeding that are currently being contested in good faith byappropriate proceedings and with respect to which adequate reserves are beingmaintained in accordance with GAAP;

####  

#### (vi)           easements, zoning restrictions,rights-of-way and similar encumbrances on real property imposed by law orarising in the ordinary course of business that do not secure any monetaryobligations and do not materially detract from the value of the affectedproperty or materially interfere with the ordinary conduct of business of theConsolidated Group taken as a whole;

####  

#### (vii)          any interest or title of a lessor under, andLiens arising from UCC financing statements (or equivalent filings,registration or agreements in foreign jurisdictions) relating to leases thatare not Capital Lease Obligations;

####  

#### (viii)         normal and customary rights of setoff upondeposits of cash in favor of banks or other depository institutions;

####  

#### 16

#### 

####  

#### (ix)           Liens of a collection bank arising underSection 4-210 of the UCC on items in the course of collection; and

####  

#### (x)            Liens deemed to exist in connection withinvestments in repurchase agreements that constitute Permitted Investments;

####  

provided, that the term “PermittedEncumbrances” shall not include any Lien securing Indebtedness.

 

“Permitted Investments” shall mean:

 

#### (i)            direct obligations of, or obligations theprincipal of and interest on which are unconditionally guaranteed by, theUnited States (or by any agency thereof to the extent such obligations arebacked by the full faith and credit of the United States), in each casematuring within one year from the date of acquisition thereof;

####  

#### (ii)           commercial paper having the highest rating,at the time of acquisition thereof, of S&P or Moody’s and in either casematuring within six months****fromthe date of acquisition thereof;

####  

#### (iii)          certificates of deposit, bankers’ acceptancesand time deposits maturing within 180 days of the date of acquisition thereofissued or guaranteed by or placed with, and money market deposit accountsissued or offered by, any domestic office of any commercial bank organizedunder the laws of the United States or any state thereof which has a combinedcapital and surplus and undivided profits of not less than $500,000,000;

####  

#### (iv)          fully collateralized repurchase agreementswith a term of not more than 30 days for securities described in clause (i)above and entered into with a financial institution satisfying the criteriadescribed in clause (iii) above;

####  

#### (v)           mutual funds investing solely in any one ormore of the Permitted Investments described in clauses (i) through (iv) above;

####  

#### (vi)          investments consisting of stock, obligations,securities or other property received in settlement of accounts receivable(created in the ordinary course of business) from bankrupt obligors;

####  

#### (vii)         investments in Watson Wyatt LLP in anaggregate amount not to exceed $10,000,000;

####  

#### (viii)        investments in Watson Wyatt & CompanyHoldings (Europe) Limited in an aggregate amount not to exceed $10,000,000;

####  

#### 17

#### 

####  

#### (ix)           Permitted CSAP Loans in an aggregate amountnot to exceed $3,500,000; and

####  

#### (x)            investments in Professional ConsultantsInsurance Company, Inc. or any other captive insurance company that securiesprofessional liability insurance for the members of the Consolidated Group inan aggregate amount not to exceed $10,000,000 at any one time outstanding.

####  

“Person” shall mean any individual,partnership, firm, corporation, association, joint venture, limited liabilitycompany, trust or other entity, or any Governmental Authority.

 

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

 

“Pledge Agreements” shall mean thePledge Agreements, dated as of the date hereof and substantially in the form ofExhibit E, made by the Parent Guarantor and Borrower in favor of theAdministrative Agent for the benefit of the Lenders pledging the interests ofthe Parent Guarantor and the Borrower in all Material Subsidiaries ascollateral security for the Obligations, as the same may from time to time beamended.

 

“Pro Rata Share” shall mean (i) withrespect to any Commitment of any Lender at any time, a percentage, thenumerator of which shall be such Lender’s Commitment (or if such Commitmentshave been terminated or expired or the Loans have been declared to be due andpayable, such Lender’s Revolving Credit Exposure), and the denominator of whichshall be the sum of such Commitments of all Lenders (or if such Commitmentshave been terminated or expired or the Loans have been declared to be due andpayable, all Revolving Credit Exposure of all Lenders) and (ii) with respect toall Commitments of any Lender at any time, the numerator of which shall be thesum of such Lender’s Revolving Commitment (or if such Revolving Commitmentshave been terminated or expired or the Loans have been declared to be due andpayable, such Lender’s Revolving Credit Exposure) and the denominator of whichshall be the sum of all Lenders’ Revolving Commitments (or if such RevolvingCommitments have been terminated or expired or the Loans have been declared tobe due and payable, all Revolving Credit Exposure of all Lenders funded undersuch Commitments).

 

“Regulation D” shall meanRegulation D of the Board of Governors of the Federal Reserve System, asthe same may be in effect from time to time, and any successor regulations.

 

“Related Parties” shall mean, withrespect to any specified Person, such Person’s Affiliates and the respectivedirectors, officers, employees, agents and advisors of such Person and suchPerson’s Affiliates.

 

“Release” shall mean any release,spill, emission, leaking, dumping, injection, pouring, deposit, disposal,discharge, dispersal, leaching or migration into the environment (including

 

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ambient air,surface water, groundwater, land surface or subsurface strata) or within anybuilding, structure, facility or fixture.

 

“Required Lenders” shall mean, at anytime, Lenders holding more than 50% of the aggregate outstanding RevolvingCommitments at such time or if the Lenders have no Commitments outstanding,then Lenders holding more than 50% of the Revolving Credit Exposure.

 

“Requirement of Law” for any Personshall mean the articles or certificate of incorporation, bylaws, partnershipcertificate and agreement, or limited liability company certificate oforganization and agreement, as the case may be, and other organizational andgoverning documents of such Person, and any law, treaty, rule or regulation, ordetermination of a Governmental Authority, in each case applicable to or bindingupon such Person or any of its property or to which such Person or any of itsproperty is subject.

 

“Responsible Officer” shall mean anyof the president, the chief executive officer, the chief operating officer, thechief financial officer, the treasurer or a vice president of the Borrower orsuch other representative of the Borrower as may be designated in writing byany one of the foregoing with the consent of the Administrative Agent; and,with respect to the financial covenants only, the chief financial officer orthe treasurer of the Borrower.

 

“Restricted Payment” shall have themeaning set forth in Section 7.5.

 

“Revolving Commitment” shall mean,with respect to each Lender, the obligation of such Lender to make RevolvingLoans to the Borrower and to participate in Letters of Credit and SwinglineLoans in an aggregate principal amount not exceeding the amount set forth withrespect to such Lender on Annex I, as such annex may be amended pursuantto Section 2.23, or in the case of a Person becoming a Lender afterthe Closing Date through an assignment of an existing Revolving Commitment, theamount of the assigned “Revolving Commitment” as provided in the Assignment andAcceptance executed by such Person as an assignee, as the same may be increasedor deceased pursuant to terms hereof.

 

“Revolving Commitment Termination Date”shall mean the earliest of (i) June 30, 2009, (ii) the date on which the RevolvingCommitments are terminated pursuant to Section 2.9 and (iii) thedate on which all amounts outstanding under this Agreement have been declaredor have automatically become due and payable (whether by acceleration orotherwise).

 

“Revolving Credit Exposure” shallmean, with respect to any Lender at any time, the sum of the outstandingprincipal amount of such Lender’s Revolving Loans, LC Exposure and SwinglineExposure.

 

“Revolving Credit Note” shall mean apromissory note of the Borrower payable to the order of a requesting Lender inthe principal amount of such Lender’s Revolving Commitment, in substantiallythe form of Exhibit A.

 

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“Revolving Loan” shall mean a loanmade by a Lender (other than the Swingline Lender) to the Borrower under itsRevolving Commitment, which may either be a Base Rate Loan or a EurodollarLoan.

 

“Separation Allowance Account” shallmean the account established for the Borrower’s qualified Canadian employees towhich, from time to time, the Borrower may credit dollar amounts allocated tosuch employee based on such employee’s share in the CSAP.  For the avoidance of doubt, no such accountshall be funded with actual dollars, but the dollar amount credited theretoshall be reflected as a liability on the balance sheet of the Borrower.

 

“S&P” shall mean Standard &Poor’s, a Division of the McGraw-Hill Companies.

 

“Subsidiary” shall mean, with respectto any Person (the “parent”), any corporation, partnership, jointventure, limited liability company, association or other entity the accounts ofwhich would be consolidated with those of the parent in the parent’sconsolidated financial statements if such financial statements were prepared inaccordance with GAAP as of such date, as well as any other corporation,partnership, joint venture, limited liability company, association or otherentity (i) of which securities or other ownership interests representing morethan 50% of the equity or more than 50% of the ordinary voting power, or in thecase of a partnership, more than 50% of the general partnership interests are,as of such date, owned, controlled or held, or (ii) that is, as of such date,otherwise controlled, by the parent or one or more subsidiaries of the parentor by the parent and one or more subsidiaries of the parent.  Unless otherwise indicated, all referencesto “Subsidiary” hereunder shall mean a Subsidiary of the Borrower.

 

“Subsidiary Guaranty Agreement” shallmean the Subsidiary Guaranty Agreement, dated as of the date hereof andsubstantially in the form of Exhibit D-2, made by certainSubsidiaries of the Borrower in favor of the Administrative Agent for thebenefit of the Lenders.

 

“Subsidiary Guaranty Supplement” shallmean each supplement substantially in the form of Annex I to theSubsidiary Guaranty Agreement executed and delivered by a Subsidiary of the Borrowerpursuant to Section 5.10.

 

“Subsidiary Loan Party” shall mean anySubsidiary that executes or becomes a party to the Subsidiary GuarantyAgreement.

 

“Swingline Commitment” shall mean thecommitment of the Swingline Lender to make Swingline Loans in an aggregateprincipal amount at any time outstanding not to exceed****$10,000,000.

 

“Swingline Exposure” shall mean, withrespect to each Lender, the principal amount of the Swingline Loans in whichsuch Lender is legally obligated either to make a Base Rate Loan or to purchasea participation in accordance with Section 2.4, which shall equalsuch Lender’s Pro Rata Share of all outstanding Swingline Loans.

 

“Swingline Lender” shall mean SunTrustBank, or any other Lender that may agree to make Swingline Loans hereunder.

 

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“Swingline Loan” shall mean a loanmade to the Borrower by the Swingline Lender under the Swingline Commitment.

 

“Swingline Note” shall mean thepromissory note of the Borrower payable to the order of the Swingline Lender inthe principal amount of the Swingline Commitment, substantially the form of ExhibitB.

 

“Swingline Rate” shall mean, for anyInterest Period, the rate as offered by the Agent and accepted by theBorrower.  The Borrower is under noobligation to accept this rate and the Agent is under no obligation to provideit.

 

“Synthetic Lease” shall mean a leasetransaction under which the parties intend that (i) the lease will be treatedas an “operating lease” by the lessee pursuant to Statement of FinancialAccounting Standards No. 13, as amended and (ii) the lessee will be entitled tovarious tax and other benefits ordinarily available to owners (as opposed tolessees) of like property.

 

“Synthetic Lease Obligations” shallmean, with respect to any Person, the sum of (i) all remaining rentalobligations of such Person as lessee under Synthetic Leases which areattributable to principal and, without duplication, (ii) all rental andpurchase price payment obligations of such Person under such Synthetic Leasesassuming such Person exercises the option to purchase the lease property at theend of the lease term.

 

“Taxes” shall mean any and all presentor future taxes, levies, imposts, duties, deductions, charges or withholdingsimposed by any Governmental Authority.

 

“Total Debt” shall mean, as of any date ofdetermination, all Indebtedness ofthe Consolidated Group measured on a consolidated basis as of such date, butexcluding Indebtedness of thetype describe in subsection (xi) of the definition of Indebtedness.

 

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

 

“Voting Stock” shall mean, withrespect to any Person, Capital Stock issued by such Person the holders of whichare ordinarily, in the absence of contingencies, entitled to vote for theelection of directors (or persons performing similar functions) of such Person,even though the right so to vote has been suspended by the happening of suchcontingency.

 

“Withdrawal Liability” shall meanliability to a Multiemployer Plan as a result of a complete or partialwithdrawal from such Multiemployer Plan, as such terms are defined in Part I ofSubtitle E of Title IV of ERISA.

 

## **Section 1.2****.****           Classifications of Loans and Borrowings**.  For purposes of this Agreement, Loans may beclassified and referred to by Class (e.g. a “Revolving Loan”) or by Type (e.g.a “Eurodollar Loan” or “Base Rate Loan”) or by Class and Type (e.g. “RevolvingEurodollar Loan”).  Borrowings also maybe classified and referred to by Class (e.g. “Revolving

##  

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## Borrowing”) orby Type (e.g. “Eurodollar Borrowing”) or by Class and Type (e.g. “ RevolvingEurodollar Borrowing”).

##  

## **Section 1.3****.****           Accounting Terms and Determination**.  Unless otherwise defined or specifiedherein, all accounting terms used herein shall be interpreted, all accountingdeterminations hereunder shall be made, and all financial statements requiredto be delivered hereunder shall be prepared, in accordance with GAAP as ineffect from time to time, applied on a basis consistent with the most recentaudited consolidated financial statement of the Borrower delivered pursuant to Section 5.1(a);provided, that if the Borrower notifies the Administrative Agent thatthe Borrower wishes to amend any covenant in Article 6 to eliminate theeffect of any change in GAAP on the operation of such covenant (or if theAdministrative Agent notifies the Borrower that the Required Lenders wish toamend Article 6 for such purpose), then the Borrower’s compliance withsuch covenant shall be determined on the basis of GAAP in effect immediatelybefore the relevant change in GAAP became effective, until either such noticeis withdrawn or such covenant is amended in a manner satisfactory to theBorrower and the Required Lenders.

##  

## **Section 1.4****.****           Terms Generally**.** **Thedefinitions of terms herein shall apply equally to the singular and pluralforms of the terms defined.  Wheneverthe context may require, any pronoun shall include the corresponding masculine,feminine and neuter forms.  The words “include”,“includes” and “including” shall be deemed to be followed by the phrase“without limitation”.  The word “will”shall be construed to have the same meaning and effect as the word“shall”.  In the computation of periodsof time from a specified date to a later specified date, the word “from” means“from and including” and the word “to” means “to but excluding”.  Unless the context requires otherwise (i)any definition of or reference to any agreement, instrument or other documentherein shall be construed as referring to such agreement, instrument or otherdocument as it was originally executed or as it may from time to time beamended, restated, supplemented or otherwise modified (subject to anyrestrictions on such amendments, supplements or modifications set forthherein), (ii) any reference herein to any Person shall be construed to includesuch Person’s successors and permitted assigns, (iii) the words “hereof”,“herein” and “hereunder” and words of similar import shall be construed torefer to this Agreement as a whole and not to any particular provision hereof,(iv) all references to Articles, Sections, Exhibits and Schedules shall beconstrued to refer to Articles, Sections, Exhibits and Schedules to thisAgreement and (v) all references to a specific time shall be construed to referto the time in the city and state of the Administrative Agent’s principaloffice, unless otherwise indicated.

##  

# **ARTICLE 2**AMOUNT AND TERMS OF THE COMMITMENTS

# ** **

## **Section 2.1****.****           General Description of Facilities**.  Subject to and upon the terms and conditionsherein set forth, (i) the Lenders hereby establish in favor of theBorrower a revolving credit facility pursuant to which each Lender severallyagrees (to the extent of such Lender’s Revolving Commitment) to make RevolvingLoans to the Borrower in accordance with Section 2.2,

 

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## (ii) theIssuing Bank agrees to issue Letters of Credit in accordance with Section 2.22,(iii) the Swingline Lender agrees to make Swingline Loans in accordance with Section 2.4,and (iv) each Lender agrees to purchase a participation interest in the Lettersof Credit and the Swingline Loans pursuant to the terms and conditions hereof; provided,that in no event shall the aggregate principal amount of all outstandingRevolving Loans, Swingline Loans and outstanding LC Exposure exceed at any timethe Aggregate Revolving Commitment Amount from time to time in effect.

##  

## **Section 2.2****.****           Revolving Loans**.  Subject to the terms and conditions setforth herein, each Lender severally agrees to make Revolving Loans, ratably inproportion to its Pro Rata Share, to the Borrower, from time to time during the****Availability Period, in an aggregateprincipal amount outstanding at any time (determined in the case of anyRevolving Loan denominated in an Available Foreign Currency by reference to theDollar Equivalent thereof on such Business Day) that will not result in (a)such Lender’s Revolving Credit Exposure exceeding such Lender’s RevolvingCommitment or (b) the sum of the aggregate Revolving Credit Exposures of allLenders exceeding the Aggregate Revolving Commitment Amount.  During the Availability Period, the Borrowershall be entitled to borrow, prepay and reborrow Revolving Loans in accordancewith the terms and conditions of this Agreement; provided, that theBorrower may not borrow or reborrow should there exist a Default or Event ofDefault.  Funding of any Revolving Loansshall be in any combination of Dollars or an Available Foreign Currency asspecified by the Borrower as set forth in Section 2.3; providedthat the Dollar Equivalent amount of outstanding Revolving Loans funded in anAvailable Foreign Currency determined from time to time by the AdministrativeAgent in its discretion shall not at any time exceed the Foreign CurrencySublimit then in effect.

##  

## **Section 2.3****.****           Procedure for Revolving Borrowings**.  The Borrower shall give the AdministrativeAgent written notice (or telephonic notice promptly confirmed in writing) ofeach Revolving Borrowing substantially in the form of Exhibit 2.3 (a “Noticeof Revolving Borrowing”) (x) prior to 11:00 a.m. (Atlanta, Georgia time)one (1) Business Day prior to the requested date of each Base Rate Borrowing,(y) prior to 11:00 a.m. (Atlanta, Georgia time) three (3) Business Days priorto the requested date of each Eurodollar Borrowing denominated in Dollars and(z) prior to 11:00 a.m. four (4) Business Days prior to the requested date ofeach Borrowing denominated in an Available Foreign Currency.  Each Notice of Revolving Borrowing shall beirrevocable and****shallspecify:  (i) the aggregate principalamount of such Borrowing, (ii) the date of such Borrowing (which shall be aBusiness Day), (iii) the Type of such Revolving Loan comprising such Borrowing,and (iv) in the case of a Eurodollar Borrowing, the requested Available ForeignCurrency (if such Borrowing is not denominated in Dollars) and the duration ofthe initial Interest Period applicable thereto (subject to the provisions ofthe definition of Interest Period). Each Revolving Borrowing shall consist entirely of Base Rate Loans orEurodollar Loans, as the Borrower may request. The aggregate principal amount of each Eurodollar Borrowing shall be notless than $1,000,000 (or, if applicable, the Dollar Equivalent thereof in theAvailable Foreign Currency in which such Eurodollar Borrowing is denominated)or a larger multiple of $100,000 (or, if applicable, the Dollar Equivalentthereof in the Available Foreign Currency in which such Eurodollar Borrowing isdenominated), and the aggregate principal amount of each Base Rate Borrowingshall not be less than $500,000 or a

##  

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## largermultiple of $100,000; provided, that Base Rate Loans made pursuant to Section 2.4or Section 2.22(d) may be made in lesser amounts as providedtherein.  At no time shall the totalnumber of Eurodollar Borrowings outstanding at any time exceed four.  At no time shall the total number of Borrowings outstanding atany time denominated in an Available Foreign Currency exceed four.  Promptly following the receipt of a Noticeof Revolving Borrowing in accordance herewith, the Administrative Agent shalladvise each Lender of the details thereof and the amount of such Lender’sRevolving Loan to be made as part of the requested Revolving Borrowing.

##  

## **Section 2.4****.****          ****Swingline Commitment**.

##  

### (a)           Subjectto the terms and conditions set forth herein, the Swingline Lender agrees tomake Swingline Loans to the Borrower, from time to time during the AvailabilityPeriod, in an aggregate principal amount outstanding at any time not to exceedthe lesser of (i) the Swingline Commitment then in effect and (ii) thedifference between the Aggregate Revolving Commitment Amount and the aggregateRevolving Credit Exposures of all Lenders; provided, that the Swingline Lendershall not be required to make a Swingline Loan to refinance an outstandingSwingline Loan.  The Borrower shall beentitled to borrow, repay and reborrow Swingline Loans in accordance with theterms and conditions of this Agreement.

###  

### (b)           TheBorrower shall give the Administrative Agent written notice (or telephonicnotice promptly confirmed in writing) of each Swingline Borrowing substantiallyin the form of Exhibit 2.4 attached hereto (“Notice of Swingline Borrowing”)prior to 11:00 a.m. (Atlanta, Georgia time) on the requested date of eachSwingline Borrowing.  Each Notice ofSwingline Borrowing shall be irrevocable and shall specify:  (i) the principal amount of such SwinglineLoan, (ii) the date of such Swingline Loan (which shall be a Business Day) and(iii) the account of the Borrower to which the proceeds of such Swingline Loanshould be credited.  The AdministrativeAgent will promptly advise the Swingline Lender of each Notice of SwinglineBorrowing.  Each Swingline Loan shallaccrue interest at the Base Rate or any other interest rate as agreed betweenthe Borrower and the Swingline Lender and shall have an Interest Period(subject to the definition thereof) as agreed between the Borrower and theSwingline Lender.  The aggregateprincipal amount of each Swingline Loan shall be not less than****$100,000 or a larger multiple of $50,000,or such other minimum amounts agreed to by the Swingline Lender and theBorrower.  The Swingline Lender willmake the proceeds of each Swingline Loan available to the Borrower in Dollarsin immediately available funds at the account specified by the Borrower in theapplicable Notice of Swingline Borrowing not later than 1:00 p.m. (Atlanta,Georgia time) on the requested date of such Swingline Loan.  For the avoidance of doubt, the SwinglineLender shall make the proceeds of each Swingline Loan available to Borrowerexclusively in Dollars and shall have no obligation to make the proceeds of anySwingline Loan available in any Available Foreign Currency.

###  

### (c)           TheSwingline Lender, at any time and from time to time in its sole discretion,may, on behalf of the Borrower (which hereby irrevocably authorizes and directsthe Swingline Lender to act on its behalf), give a Notice of RevolvingBorrowing to the Administrative Agent requesting the Lenders (including the SwinglineLender) to make Base

###  

### 24

### 

###  

### Rate Loans inan amount equal to the unpaid principal amount of any Swingline Loan.  Each Lender will make the proceeds of itsBase Rate Loan included in such Borrowing available to the Administrative Agentfor the account of the Swingline Lender in accordance with Section 2.5,which will be used solely for the repayment of such Swingline Loan.

###  

### (d)           Iffor any reason a Base Rate Borrowing may not be (as determined in the solediscretion of the Administrative Agent), or is not, made in accordance with theforegoing provisions, then each Lender (other than the Swingline Lender) shallpurchase an undivided participating interest in such Swingline Loan in anamount equal to its Pro Rata Share thereof on the date that such Base RateBorrowing should have occurred.  On thedate of such required purchase, each Lender shall promptly transfer, inimmediately available funds, the amount of its participating interest to theAdministrative Agent for the account of the Swingline Lender.  If such Swingline Loan bears interest at arate other than the Base Rate, such Swingline Loan shall automatically become aBase Rate Loan on the effective date of any such participation and interestshall become payable on demand.

###  

### (e)           EachLender’s obligation to make a Base Rate Loan pursuant to Section 2.4(c) orto purchase the participating interests pursuant to Section 2.4(d) shallbe absolute and unconditional and shall not be affected by any circumstance,including without limitation (i) any setoff, counterclaim, recoupment, defenseor other right that such Lender or any other Person may have or claim againstthe Swingline Lender, the Borrower or any other Person for any reasonwhatsoever, (ii) the existence of a Default or an Event of Default or thetermination of any Lender’s Revolving Commitment, (iii) the existence (oralleged existence) of any event or condition which has had or could reasonably be expected to have a Material AdverseEffect, (iv) any breach of this Agreement or any other Loan Document bythe Borrower, the Administrative Agent or any Lender or (v) any othercircumstance, happening or event whatsoever, whether or not similar to any ofthe foregoing.  If such amount is not infact made available to the Swingline Lender by any Lender, the Swingline Lendershall be entitled to recover such amount on demand from such Lender, togetherwith accrued interest thereon for each day from the date of demand thereof (i)at the Federal Funds Rate until the second Business Day after such demand and(ii) at the Base Rate at all times thereafter. Until such time as such Lender makes its required payment, the SwinglineLender shall be deemed to continue to have outstanding Swingline Loans in theamount of the unpaid participation for all purposes of the Loan Documents.  In addition, such Lender shall be deemed tohave assigned any and all payments made of principal and interest on its Loansand any other amounts due to it hereunder, to the Swingline Lender to fund theamount of such Lender’s participation interest in such Swingline Loans thatsuch Lender failed to fund pursuant to this Section, until such amount has beenpurchased in full.

###  

## **Section 2.5****.****          ****Funding of Borrowings**.

##  

### (a)           EachLender will make available each Loan to be made by it hereunder on the proposeddate thereof by wire transfer in immediately available funds by 11:00 a.m.(Atlanta, Georgia time) to the Administrative Agent at the Payment Office;provided, that the Swingline Loans will be made as set forth inSection 2.4.   If any Borrowing isto be denominated in an

###  

### 25

### 

###  

### AvailableForeign Currency, not later than 11:00 a.m. each Lender will make available itsPro Rata Share of such Borrowing, in immediately available funds and in theAvailable Foreign Currency so requested by the Borrower at the applicableForeign Currency Payment Account for the benefit of the Administrative Agentand otherwise according to the payment instructions of the AdministrativeAgent.  The Administrative Agent willmake such Loans available to the Borrower by promptly crediting the amountsthat it receives, in like funds by the close of business on such proposed date,to an account maintained by the Borrower with the Administrative Agent or atthe Borrower’s option, by effecting a wire transfer of such amounts to anaccount designated by the Borrower to the Administrative Agent.

###  

### (b)           Unlessthe Administrative Agent shall have been notified by any Lender prior to 5:00p.m. (Atlanta, Georgia time) one (1) Business Day prior to the date of aBorrowing in which such Lender is to participate that such Lender will not makeavailable to the Administrative Agent such Lender’s share of such Borrowing,the Administrative Agent may assume that such Lender has made such amountavailable to the Administrative Agent on such date, and the AdministrativeAgent, in reliance on such assumption, may make available to the Borrower onsuch date a corresponding amount.  Ifsuch corresponding amount is not in fact made available to the AdministrativeAgent by such Lender on the date of such Borrowing, the Administrative Agentshall be entitled to recover such corresponding amount on demand from suchLender together with interest at the Federal Funds Rate until the secondBusiness Day after such demand and thereafter at the Base Rate.  If such Lender does not pay suchcorresponding amount forthwith upon the Administrative Agent’s demand therefor,the Administrative Agent shall promptly notify the Borrower, and the Borrowershall immediately pay such corresponding amount to the Administrative Agenttogether with interest at the rate specified for such Borrowing.  Nothing in this subsection shall bedeemed to relieve any Lender from its obligation to fund its Pro Rata Share ofany Borrowing hereunder or to prejudice any rights which the Borrower may haveagainst any Lender as a result of any default by such Lender hereunder.

###  

### (c)           AllRevolving Borrowings shall be made by the Lenders on the basis of theirrespective Pro Rata Shares.  No Lendershall be responsible for any default by any other Lender in its obligationshereunder, and each Lender shall be obligated to make its Loans provided to bemade by it hereunder, regardless of the failure of any other Lender to make itsLoans hereunder.

###  

## **Section 2.6****.****           Multi-CurrencyOptions.**

##  

(a)           TheBorrower may request Borrowings of Revolving Loans in any Available ForeignCurrency; provided, however, that the aggregate Dollar Equivalent outstandingamount of Revolving Loans made in Available Foreign Currencies shall not exceedat any time the Foreign Currency Sublimit. Each Lender’s Pro Rata Share of each Revolving Loan made in an AvailableForeign Currency shall be determined by reference to its Dollar Equivalent onthe date each such Revolving Loan is made. Notwithstanding anything herein tothe contrary, all Base Rate Loans and all Swingline Loans shall be funded onlyin Dollars.  Eurodollar Loans may befunded in either Dollars or in an Available Foreign Currency, in either case,as requested by the Borrower pursuant to Section 2.3.

 

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(b)           Allpayments of Obligations under this Agreement, the Notes or any other LoanDocument shall be made in Dollars, except for Eurodollar Loans funded in anAvailable Foreign Currency, which shall be repaid, including interest thereon,in the applicable Available Foreign Currency. If any payment of any Obligation shall be made in a currency other thanthe currency required hereunder, such amount shall be converted into thecurrency required hereunder at the current market rate for the purchase of thecurrency required hereunder with the currency in which such Obligation waspaid, as quoted by the Administrative Agent in accordance with the methodscustomarily used by the Administrative Agent for such purposes as the time ofsuch determination.  The parties heretohereby agree, to the fullest extent that they may effectively do so underapplicable law, that (i) if for the purposes of obtaining any judgment or awardit becomes necessary to convert from any currency other than the currencyrequired hereunder into the currency required hereunder any amount inconnection with the Obligations, then the conversion shall be made as providedabove on the Business Day before the day on which the judgment or award isgiven, (ii) in the event that there is a change in the rate of exchangeprevailing between the Business Day before the day on which the judgment oraward is given and the date of payment, the Borrower will pay to theAdministrative Agent, for the benefit of the Lenders, such additional amounts(if any) as may be necessary, and the Administrative Agent, on behalf of theLenders, will pay to the Borrower such excess amounts (if any) as result fromsuch change in the rate of exchange, to assure that the amount paid on suchdate is the amount in such other currency, which when converted at the rate ofexchange described herein on the date of payment, is the amount then due in thecurrency required hereunder, and (iii) any amount due from the Borrower underthis Section 2.6(b) shall be due as a separate debt and shall notbe affected by judgment or award being obtained for any other sum due.  For the avoidance of doubt, the partiesaffirm and agree that neither the fixation of the conversion rate of anyAvailable Foreign Currency against the Euro as a single currency, in accordancewith the Treaty Establishing the European Economic Community, as amended by theTreaty on the European Union (The Maastricht Treaty), nor the conversion of theObligations under this Agreement from any Available Foreign Currency into Euroswill be a reason for early termination or revision of this Agreement orrepayment of any amount due under this Agreement or create any liability of anyparty towards any other party for any direct or consequential loss arising fromany of these events.  As of the datethat any Available Foreign Currency is no longer the lawful currency of itsrespective country, all funding and payment Obligations to be made in suchaffected currency under this Agreement shall be satisfied in Euros.

 

(c)           Ifone or more members of the Consolidated Group shall wind up, liquidate,dissolve or become a debtor in bankruptcy while there remains outstanding:  (i) any amounts owing to the Lendershereunder or under the Notes, (ii) any damages owing to the Lenders in respectof a breach of any of the terms hereof, or (iii) any judgment or order renderedin respect of such amounts or damages, the Borrower shall indemnify and holdthe Lenders harmless against any deficiency with respect to the applicableAvailable Foreign Currency in the amounts received by the Lenders arising orresulting from any variation as between: (i) the rate of exchange at which the applicable Available ForeignCurrency is converted into another currency (the “Liquidation Currency”)for purposes of such winding-up, liquidation, dissolution or bankruptcy withregard to the amount in the applicable Available Foreign Currency due or

 

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contingently due hereunder or under the Notes or under any judgment ororder to which the relevant Obligations hereunder or under the Notes shall havebeen merged and (ii) the rate of exchange at which Administrative Agentcould, in accordance with normal banking procedures, be able to purchase theapplicable Available Foreign Currency with the Liquidation Currency at theearlier of (A) the date of payment of such amounts or damages and (B) thefinal date or dates for the filing of proofs of a claim in a winding-up,liquidation, dissolution or bankruptcy. As used in the preceding sentence, the “final date” or dates for thefiling of proofs of a claim in a winding-up, liquidation, dissolution orbankruptcy shall be the date fixed by the liquidator under the applicable lawas being the last practicable date as of which the liabilities of the Borrowermay be ascertained for such winding-up, liquidation, dissolution or bankruptcybefore payment by the liquidator or other appropriate person in respectthereof.

 

(d)           TheBorrower agrees to indemnify the Administrative Agent and the Lenders againstany loss or expense which the Administrative Agent or such Lenders may sustainor incur in liquidating or employing deposits from third parties acquired toeffect, fund or maintain any Loan made in an Available Foreign Currency or anypart thereof as a consequence of (i) the Borrower’s failure to make a paymenton other than the due date of such Loan, or (ii) the Borrower’s failure toborrow under, convert to or renew under the applicable Available ForeignCurrency on a binding effective date of such borrowing, conversion orrenewal.  The Administrative Agent’sdetermination of an amount payable under this paragraph (d) shall, in theabsence of error, be conclusive and shall be payable on demand.

 

(e)           TheAdministrative Agent may from time to time in its discretion calculate theDollar Equivalent of any Revolving Loan denominated in an Available ForeignCurrency.  In the event that theaggregate Dollar Equivalent of the outstanding principal amount of theRevolving Loans denominated in an Available Foreign Currency at any timeexceeds the Foreign Currency Sublimit, the Administrative Agent shall promptlygive notice of such fact to the Borrower and the Lenders, and the Borrowershall be required to make a payment to the Administrative Agent to reduce theoutstanding principal amount of the outstanding Revolving Loans denominated inan Available Foreign Currency so that the Dollar Equivalent thereof equals notmore than the Foreign Currency Sublimit. Such payment shall be made within two (2) Business Days following thedate of receipt of such notice given by the Administrative Agent.  Each such prepayment shall be accompanied bya payment of all accrued and unpaid interest on the Revolving Loans prepaid andany applicable breakage fees and funding losses pursuant to Section 2.18.

 

## **Section 2.7****.****          ****Interest Elections**.

##  

### (a)           EachBorrowing initially shall be of the Type specified in the applicable Notice ofBorrowing, and in the case of a Eurodollar Borrowing, shall have an initialInterest Period as specified in such Notice of Borrowing.  Thereafter, the Borrower may elect toconvert such Borrowing into a different Type or to continue such Borrowing, andin the case of a Eurodollar Borrowing, may elect Interest Periods therefor, allas provided in this Section.  TheBorrower may elect different options with respect to different portions of theaffected Borrowing, in which case each such portion shall be allocated ratablyamong the Lenders

###  

### 28

### 

###  

### holding Loanscomprising such Borrowing, and the Loans comprising each such portion shall beconsidered a separate Borrowing.  ThisSection shall NOT apply to Eurodollar Borrowings denominated in anAvailable Foreign Currency (other than continuations in the same AvailableForeign Currency which shall be permitted) or Swingline Borrowings, which maynot be converted or continued.

###  

### (b)           Tomake an election pursuant to this Section, the Borrower shall give theAdministrative Agent prior written notice (or telephonic notice promptlyconfirmed in writing) of each Borrowing substantially in the form of Exhibit2.6 attached hereto (a “Notice of Conversion/Continuation”) that is to beconverted or continued, as the case may be, (x) prior to 10:00 a.m. (Atlanta,Georgia time) one (1) Business Day prior to the requested date of a conversioninto a Base Rate Borrowing and (y) prior to 11:00 a.m. (Atlanta, Georgia time)three (3) Business Days prior to a continuation of or conversion into aEurodollar Borrowing.  Each such Noticeof Conversion/Continuation shall be irrevocable and shall specify (i) theBorrowing to which such Notice of Continuation/Conversion applies and ifdifferent options are being elected with respect to different portions thereof,the portions thereof that are to be allocated to each resulting Borrowing (inwhich case the information to be specified pursuant to clauses (iii) and (iv)shall be specified for each resulting Borrowing); (ii) the effective date ofthe election made pursuant to such Notice of Continuation/Conversion, whichshall be a Business Day, (iii) whether the resulting Borrowing is to be a BaseRate Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowingis to be a Eurodollar Borrowing, the Interest Period applicable thereto aftergiving effect to such election, which shall be a period contemplated by thedefinition of “Interest Period”.  If anysuch Notice of Continuation/Conversion requests a Eurodollar Borrowing but doesnot specify an Interest Period, the Borrower shall be deemed to have selectedan Interest Period of one month.  Theprincipal amount of any resulting Borrowing shall satisfy the minimum borrowingamount for Eurodollar Borrowings and Base Rate Borrowings set forth inSection 2.3.

###  

### (c)           If,on the expiration of any Interest Period in respect of any EurodollarBorrowing, the Borrower shall have failed to deliver a Notice of Conversion/Continuation, then, unless such Borrowing is repaid as provided herein, theBorrower shall be deemed to have elected to convert such Borrowing to a BaseRate Borrowing; provided, that if, on the expiration of any Interest Period inrespect of any Eurodollar Borrowing denominated in an Available ForeignCurrency, the Borrower shall have failed to deliver a Notice of Conversion/Continuation for such Borrowing in the same Available Foreign Currency, thenunless such Borrowing is repaid as provided herein, the Borrower shall be deemedto have elected to convert such Borrowing to a Base Rate Borrowing in theDollar Equivalent of such Borrowing.  No Borrowing may be converted into, or continued as, a EurodollarBorrowing if a Default or an Event of Default exists, unless the AdministrativeAgent and each of the Lenders shall have otherwise consented in writing.  During an Event of Default (unless theAdministrative Agent and each of the Lenders shall have otherwise consented inwriting), all Eurodollar Loans denominated in an Available Foreign Currencyshall be converted into Dollars upon the expiration of the Interest Periodapplicable thereto.  No conversion ofany Eurodollar Loans shall be permitted except on the last day of the InterestPeriod in respect thereof.

###  

### 29

### 

###  

### (d)           Uponreceipt of any Notice of Conversion/Continuation, the Administrative Agentshall promptly notify each Lender of the details thereof and of such Lender’sportion of each resulting Borrowing.

###  

## **Section 2.8****.****           OptionalReduction and Termination of Commitments.**

##  

### (a)           Unlesspreviously terminated, all Revolving Commitments, Swingline Commitments and LCCommitments shall terminate on the Revolving Commitment Termination Date.

###  

### (b)           Uponat least three (3) Business Days’ prior written notice (or telephonic noticepromptly confirmed in writing) to the Administrative Agent (which notice shallbe irrevocable), the Borrower may reduce the Aggregate Revolving Commitments inpart or terminate the Aggregate Revolving Commitments in whole; provided, that(i) any partial reduction shall apply to reduce proportionately and permanentlythe Revolving Commitment of each Lender, (ii) any partial reduction pursuant tothis Section 2.8 shall be in an amount of at least $5,000,000 and any largermultiple of $1,000,000, and (iii) no such reduction shall be permitted whichwould reduce the Aggregate Revolving Commitment Amount to an amount less thanthe outstanding Revolving Credit Exposures of all Lenders.  Any such reduction in the AggregateRevolving Commitment Amount below the sum of the principal amount of theSwingline Commitment and the LC Commitment shall result in a proportionatereduction (rounded to the next lowest integral multiple of $100,000) in theSwingline Commitment and the LC Commitment.

###  

## **Section 2.9****.****           Repaymentof Loans.**

##  

### (a)           Theoutstanding principal amount of all Revolving Loans shall be due and payable(together with accrued and unpaid interest thereon) on the Revolving CommitmentTermination Date; provided, however, the outstanding principal amount of allEurodollar Loans denominated in an Available Foreign Currency shall be due andpayable (together with accrued and unpaid interest thereon) on the last day ofthe Interest Period (unless such Eurodollar Loans denominated in an AvailableForeign Currency are continued in the same Available Foreign Currency inaccordance with Section 2.7; and

###  

### (b)           Theprincipal amount of each Swingline Borrowing shall be due and payable (togetherwith accrued and unpaid interest thereon) on the earlier of (i) the last day ofthe Interest Period applicable to such Borrowing and (ii) the RevolvingCommitment Termination Date.

###  

## **Section 2.10****.****        Evidence of Indebtedness**.

##  

### (a)           EachLender shall maintain in accordance with its usual practice appropriate recordsevidencing the Indebtedness of the Borrower to such Lender resulting from eachLoan made by such Lender from time to time, including the amounts of principaland interest payable thereon and paid to such Lender from time to time underthis Agreement.  The AdministrativeAgent shall maintain****appropriaterecords****in which shall be recorded(i) the

###  

### 30

### 

###  

### RevolvingCommitment of each Lender, (ii) the amount of each Loan made hereunder by eachLender, the Class and Type thereof and the Interest Period applicable thereto,(iii) the date of each continuation thereof pursuant to Section 2.7,(iv) the date of each conversion of all or a portion thereof to another Typepursuant to Section 2.7, (v) the date and amount of any principalor interest due and payable or to become due and payable from the Borrower toeach Lender hereunder in respect of such Loans and (vi) both the date andamount of any sum received by the Administrative Agent hereunder from theBorrower in respect of the Loans and each Lender’s Pro Rata Share thereof.  The entries made in such records shall be *prima facie*evidenceof the existence and amounts of the obligations of the Borrower thereinrecorded; provided, that the failure or delay of any Lender or theAdministrative Agent in maintaining or making entries into any such record orany error therein shall not in any manner affect the obligation of the Borrowerto repay the Loans (both principal and unpaid accrued interest) of such Lenderin accordance with the terms of this Agreement.

###  

### (b)           Atthe request of any Lender (including the Swingline Lender) at any time, theBorrower agrees that it will execute and deliver to such Lender a RevolvingCredit Note and, in the case of the Swingline Lender only, a Swingline Note,payable to the order of such Lender.

###  

## **Section 2.11****.****        Optional Prepayments. **The Borrower shall have the right at anytime and from time to time to prepay any Borrowing (except for Eurodollar Loanswhich the Borrower may only prepay on the expiration of the current InterestPeriod), in whole or in part, without premium or penalty by giving irrevocablewritten notice (or telephonic notice promptly confirmed in writing) to theAdministrative Agent no later than (i) in the case of prepayment of anyEurodollar Borrowing, 11:00 a.m. (Atlanta, Georgia time) not less than three(3) Business Days prior to any such prepayment, (ii) in the case of anyprepayment of any Base Rate Borrowing, not less than one Business Day prior tothe date of such prepayment, and (iii) in the case of Swingline Borrowings,prior to 11:00 a.m. (Atlanta, Georgia time) on the date of suchprepayment.  Each such notice shall beirrevocable and shall specify the proposed date of such prepayment and theprincipal amount of each Borrowing or portion thereof to be prepaid.  Upon receipt of any such notice, theAdministrative Agent shall promptly notify each affected Lender of the contentsthereof and of such Lender’s Pro Rata Share of any such prepayment.  If such notice is given, the aggregateamount specified in such notice shall be due and payable on the date designatedin such notice, together with accrued interest to such date on the amount soprepaid in accordance with Section 2.13(e); provided, that if a EurodollarBorrowing is prepaid on a date other than the last day of an Interest Periodapplicable thereto, the Borrower shall also pay all amounts required pursuantto Section 2.19.  Each partialprepayment of any Loan (other than a Swingline Loan) shall be in an amount thatwould be permitted in the case of an advance of a Revolving Borrowing of thesame Type pursuant to Section 2.2 or in the case of a Swingline Loanpursuant to Section 2.4.  Eachprepayment of a Borrowing shall be applied ratably to the Loans comprising suchBorrowing.

##  

## **Section 2.12****.****        Mandatory Prepayments**.  If at any time (i) the Dollar Equivalent ofthe Revolving Credit Exposure of all Lenders exceeds the Aggregate RevolvingCommitment Amount, as reduced pursuant to Section 2.8 or otherwise or (ii)the aggregate principal amount of all Letter of Credit Obligations exceeds anamount equal to 105% of the LC Commitment, the

##  

31

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## Borrower shallimmediately repay Swingline Loans and Revolving Loans in an amount equal tosuch excess, together with all accrued and unpaid interest on such excessamount and any amounts due under Section 2.19.  Each prepayment shall be applied first to the Swingline Loans tothe full extent thereof, second to the Base Rate Loans to the full extentthereof, and finally to Eurodollar Loans to the full extent thereof.  If after giving effect to prepayment of allSwingline Loans and Revolving Loans, the Revolving Credit Exposure of allLenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shalldeposit in an account with the Administrative Agent, in the name of theAdministrative Agent and for the benefit of the Issuing Bank and the Lenders,an amount in cash equal to such excess plus any accrued and unpaid fees thereonto be held as collateral for the LC Exposure. Such account shall be administered in accordance withSection 2.22(g) hereof.

##  

## **Section 2.13****.****       ****Interest on Loans**.

##  

### (a)           TheBorrower shall pay interest on each Loan at either (i) the Base Rate in effectfrom time to time or (ii) LIBOR plus the Applicable Margin for each RevolvingLoan in effect from time to time.

###  

### (b)           TheBorrower shall pay interest on each Swingline Loan at the Swingline Rate ineffect from time to time.

###  

### (c)           Whilean Event of Default exists or after acceleration, at the option of the RequiredLenders, the Borrower shall pay interest (“Default Interest”) with respect toall Eurodollar Loans at the rate otherwise applicable for the then-currentInterest Period *plus* an additional 2% per annum until the last day of suchInterest Period, and thereafter, and with respect to all Base Rate Loans(including all Swingline Loans)****andall other Obligations hereunder (other than Loans), at an all-in rate in effectfor Base Rate Loans, *plus* an additional 2% per annum.

###  

### (d)           Intereston the principal amount of all Loans shall accrue from and including the datesuch Loans are made to but excluding the date of any repayment thereof.  Interest on all outstanding Base Rate Loansand Swingline Loan shall be payable quarterly in arrears on the last day ofeach March, June, September and December and on the RevolvingCommitment Termination Date, as the case may be.  Interest on all outstanding Eurodollar Loans shall be payable onthe last day of each Interest Period applicable thereto, and, in the case ofany Eurodollar Loans having an Interest Period in excess of three months or 90days, respectively, on each day which occurs every three months or 90 days, asthe case may be, after the initial date of such Interest Period, and on theRevolving Commitment Termination Date. Interest on each Swingline Loan shall be payable on the maturity date ofsuch Loan, which shall be the last day of the Interest Period applicablethereto.  Interest on any Loan which isconverted into a Loan of another Type or which is repaid or prepaid shall bepayable on the date of such conversion or on the date of any such repayment orprepayment (on the amount repaid or prepaid) thereof.  All Default Interest shall be payable on demand.

###  

### 32

### 

###  

### (e)           TheAdministrative Agent shall determine each interest rate applicable to the Loanshereunder and shall promptly notify the Borrower and the Lenders of such ratein writing (or by telephone, promptly confirmed in writing).  Any such determination shall be conclusiveand binding for all purposes, absent manifest error.

###  

## **Section 2.14****.****       ****Fees**.

##  

### (a)           TheBorrower shall pay to the Administrative Agent for its own account fees in theamounts and at the times previously agreed upon in writing by the Borrower andthe Administrative Agent.

###  

### (b)           TheBorrower agrees to pay to the Administrative Agent for the account of eachLender a commitment fee, whichshall accrue at the Applicable Percentage per annum (determined daily in accordancewith Schedule I) on the daily amount of the unused Revolving Commitment of such Lender during theAvailability Period; provided, that if such Lender continues to have anyRevolving Credit Exposure after the Revolving Commitment Termination Date, thenthe commitment fee shallcontinue to accrue on the amount ofsuch Lender’s unused Revolving Commitment from and after the RevolvingCommitment Termination Date to the date that all of such Lender’s RevolvingCredit Exposure has been paid in full. For purposes of computing commitment fees with respect to the RevolvingCommitments, the Revolving Commitment of each Lender shall be deemed used tothe extent of the outstanding Revolving Loans and LC Exposure, but notSwingline Exposure, of such Lender.

###  

### (c)           TheBorrower agrees to pay (i) to the Administrative Agent, for the account of eachLender, a letter of credit fee with respect to its participation in each Letterof Credit, which shall accrue at a rate per annum equal to the ApplicableMargin for Eurodollar Loans then in effect on the average daily amount of suchLender’s LC Exposure attributable to such Letter of Credit during the periodfrom and including the date of issuance of such Letter of Credit to butexcluding the date on which such Letter of Credit expires or is drawn in full(including without limitation any LC Exposure that remains outstanding afterthe Revolving Commitment Termination Date) and (ii) to the Issuing Bank for itsown account a fronting fee, which shall accrue at the rate of 0.125% per annumon the average daily amount of the LC Exposure (excluding any portion thereofattributable to unreimbursed LC Disbursements) during the Availability Period(or until the date that such Letter of Credit is irrevocably cancelled,whichever is later), as well as the Issuing Bank’s standard fees with respectto issuance, amendment, renewal or extension of any Letter of Credit orprocessing of drawings thereunder. Notwithstanding the foregoing, if the Required Lenders elect to increasethe interest rate on the Loans to the Default Interest pursuant toSection 2.13(d), the rate per annum used to calculate the letter of creditfee pursuant to clause (i) above shall automatically be increased by anadditional 2% per annum.

###  

### (d)           TheBorrower shall pay to the Administrative Agent, for the ratable benefit of eachLender, the upfront fee previously agreed upon by the Borrower and theAdministrative Agent, which shall be due and payable on the Closing Date.

###  

### 33

### 

###  

### (e)           Accruedfees under paragraphs (b) and (c) above shall be payable quarterly in arrearson the last day of each March, June, September and December, commencing onSeptember 30, 2004 and onthe Revolving Commitment Termination Date (and if later, the date the Loans andLC Exposure shall be repaid in their entirety); provided further, that any suchfees accruing after the Revolving Commitment Termination Date shall be payableon demand.

###  

## **Section 2.15****.****       ****Computation of Interestand Fees**.

##  

All computations of interest and fees hereunder shall be made on thebasis of a year of 360 days for the actual number of days (including thefirst day but excluding the last day) occurring in the period for which suchinterest or fees are payable (to the extent computed on the basis of dayselapsed).  Each determination by theAdministrative Agent of an interest amount or fee hereunder shall be made ingood faith and, except for manifest error, shall be final, conclusive andbinding for all purposes.

 

## **Section 2.16****.****        Inability to Determine Interest Rates**.  If prior to the commencement of any InterestPeriod for any Eurodollar Borrowing,

##  

#### (i)            the Administrative Agent shall havedetermined (which determination shall be conclusive and binding upon theBorrower) that, by reason of circumstances affecting the relevant interbankmarket, adequate means do not exist for ascertaining LIBOR for such InterestPeriod, or

####  

#### (ii)           the Administrative Agent shall have receivednotice from the Required Lenders that the Adjusted LIBO Rate does notadequately and fairly reflect the cost to such Lenders (or Lender, as the casemay be) of making, funding or maintaining their (or its, as the case may be)Eurodollar Loans for such Interest Period,

####  

the Administrative Agent shall give written notice (or telephonicnotice, promptly confirmed in writing) to the Borrower and to the Lenders assoon as practicable thereafter.  In thecase of Eurodollar Loans, until the Administrative Agent shall notify theBorrower and the Lenders that the circumstances giving rise to such notice nolonger exist, (i) the obligations of the Lenders to make Eurodollar RevolvingLoans or to continue or convert outstanding Loans as or into Eurodollar Loansshall be suspended and (ii) all such affected Loans shall automatically, on thelast day of the then current Interest Period applicable thereto, unless theBorrower prepays such Loans in accordance with this Agreement, (A) if suchLoans are Eurodollar Loans, be converted into Base Rate Loans and (B) if suchLoans are Eurodollar Loans denominated in an Available Foreign Currency, beexchanged for the Dollar Equivalent thereof and converted into Base RateLoans.  Unless the Borrower notifies theAdministrative Agent at least one Business Day before the date of anyEurodollar Revolving Borrowing for which a Notice of Revolving Borrowing haspreviously been given that it elects not to borrow on such date, then suchRevolving Borrowing shall be made as a Base Rate Borrowing.

 

## **Section 2.17****.****        Illegality. **If, after the Closing Date, any Change in Law shall make itunlawful or impossible for any Lender to make or maintain or fund Loans in theapplicable

##  

34

----

 

## AvailableForeign Currency, the Administrative Agent shall notify the Borrower.  Upon receipt of such notice, the applicableEurodollar Loan made in an Available Foreign Currency shall be repaid by theBorrower and/or converted to an Available Foreign Currency or Dollars oneither:  (i) the last day of the thencurrent Interest Period for the affected Eurodollar Loan, if Lenders maylawfully continue to maintain a Loan at such Available Foreign Currency to suchday, or (ii) immediately, if Lenders may not lawfully continue to so maintainsuch Eurodollar Loan. In the case of the making of a Eurodollar Borrowing denominated in an Available ForeignCurrency, such Lender’s Revolving Loan shall be made as a Base Rate Loan as apart of the same Borrowing for the same Interest Period and if the affectedLoan is then outstanding, such Loan shall be exchanged for the DollarEquivalent thereof and converted to a Based Rate Loan either (i) on the lastday of the then current Interest Period applicable to such Loan if such Lendermay lawfully continue to maintain such Loan to such date or (ii) immediately ifsuch Lender shall determine that it may not lawfully continue to maintain suchLoan to such date.  Notwithstanding theforegoing, the affected Lender shall, prior to giving such notice to theAdministrative Agent, designate a different Applicable Lending Office if suchdesignation would avoid the need for giving such notice and if such designationwould not otherwise be disadvantageous to such Lender in the good faithexercise of its discretion.

##  

## **Section 2.18****.****       ****Increased Costs**.

##  

### (a)           Ifany Change in Law shall:

###  

#### (i)            impose, modify or deem applicable anyreserve, special deposit or similar requirement that is not otherwise includedin the determination of the Adjusted LIBO Rate hereunder against assets of,deposits with or for the account of, or credit extended by, any Lender (exceptany such reserve requirement reflected in the Adjusted LIBO Rate) or theIssuing Bank; or

####  

#### (ii)           impose on any Lender or on the Issuing Bankor the eurodollar interbank market any other condition affecting this Agreementor any Eurodollar Loans made by such Lender or any Letter of Credit or anyparticipation therein;

####  

and the result of either of the foregoing is to increase the cost tosuch Lender of making, converting into, continuing or maintaining a EurodollarLoan or to increase the cost to such Lender or the Issuing Bank ofparticipating in or issuing any Letter of Credit or to reduce the amountreceived or receivable by such Lender or the Issuing Bank hereunder (whether ofprincipal, interest or any other amount), then the Borrower shall promptly pay,upon written notice from and demand by such Lender on the Borrower (with a copyof such notice and demand to the Administrative Agent), to the AdministrativeAgent for the account of such Lender, within five Business Days after the dateof such notice and demand, additional amount or amounts sufficient tocompensate such Lender or the Issuing Bank, as the case may be, for suchadditional costs incurred or reduction suffered.

 

### (b)           Ifany Lender or the Issuing Bank shall have determined that on or after the dateof this Agreement any Change in Law regarding capital requirements has or wouldhave

###  

### 35

### 

###  

### the effect ofreducing the rate of return on such Lender’s or the Issuing Bank’s capital (oron the capital of such Lender’s or the Issuing Bank’s parent corporation) as aconsequence of its obligations hereunder or under or in respect of any Letterof Credit to a level below that which such Lender or the Issuing Bank or suchLender’s or the Issuing Bank’s parent corporation could have achieved but forsuch Change in Law (taking into consideration such Lender’s or the IssuingBank’s policies or the policies of such Lender’s or the Issuing Bank’s parentcorporation with respect to capital adequacy) then, from time to time, withinfive (5) Business Days after receipt by the Borrower of written demand by suchLender (with a copy thereof to the Administrative Agent), the Borrower shallpay to such Lender such additional amounts as will compensate such Lender orthe Issuing Bank or such Lender’s or the Issuing Bank’s parent corporation forany such reduction suffered.

###  

### (c)           Acertificate of a Lender or the Issuing Bank setting forth the amount or amountsnecessary to compensate such Lender or the Issuing Bank or such Lender’s or theIssuing Bank’s parent corporation, as the case may be, specified in paragraph(a) or (b) of this Section shall be delivered to the Borrower (with a copyto the Administrative Agent) and shall be conclusive, absent manifesterror.  The Borrower shall pay any suchLender or the Issuing Bank, as the case may be, such amount or amounts within10 days after receipt thereof.

###  

### (d)           Ifand so long as any Lender is required to comply with reserve assets, liquidity,cash margin or other requirements of any monetary or other authority (includingany such requirement imposed by the European Central Bank or the EuropeanSystem of Central Banks, but excluding requirements reflected in the EurodollarReserve Percentage) in respect of any such Lender’s Eurodollar Loansdenominated in an Available Foreign Currency, such Lender may require theBorrower to pay, contemporaneously with each payment of interest on each ofsuch Loans subject to such requirements, additional interest on such Loan at arate per annum specified by such Lender to be the cost to such Lender ofcomplying with such requirement in relation to such Loan.

###  

### (e)           Failureor delay on the part of any Lender or the Issuing Bank to demand compensationpursuant to this Section shall not constitute a waiver of such Lender’s orthe Issuing Bank’s right to demand such compensation.

###  

## **Section 2.19****.****        Funding Indemnity**.  In the event of (a) the payment of anyprincipal of a Eurodollar Loan other than on the last day of the InterestPeriod applicable thereto (including as a result of an Event of Default), (b)the conversion or continuation of a Eurodollar Loan other than on the last dayof the Interest Period applicable thereto, or (c) the failure by the Borrowerto borrow, prepay, convert or continue any Eurodollar Loan on the datespecified in any applicable notice (regardless of whether such notice iswithdrawn or revoked), then, in any such event, the Borrower shall compensateeach Lender, within five (5) Business Days after written demand from suchLender, for any loss, cost or expense attributable to such event.  In the case of a Eurodollar Loan, such loss,cost or expense shall be deemed to include an amount determined by such Lenderto be the excess, if any, of (A) the amount of interest that would have accruedon the principal amount of such Eurodollar Loan if such event had not occurredat the Adjusted LIBO Rate applicable to such Eurodollar Loan for the periodfrom the date of such event to the last day

##  

36

----

 

## of the thencurrent Interest Period therefor (or in the case of a failure to borrow,convert or continue, for the period that would have been the Interest Periodfor such Eurodollar Loan) over (B) the amount of interest that would accrue onthe principal amount of such Eurodollar Loan for the same period if theAdjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid orconverted or the date on which the Borrower failed to borrow, convert orcontinue such Eurodollar Loan.  Acertificate as to any additional amount payable under this Section 2.19submitted to the Borrower by any Lender (with a copy to the AdministrativeAgent) shall be conclusive, absent manifest error.

##  

## **Section 2.20.****       ****Taxes**.

##  

### (a)           Anyand all payments by or on account of any obligation of the Borrower hereundershall be made free and clear of and without deduction for any Indemnified Taxesor Other Taxes; provided, that if the Borrower shall be required to deduct anyIndemnified Taxes or Other Taxes from such payments, then (i) the sum payableshall be increased as necessary so that after making all required deductions(including deductions applicable to additional sums payable under this Section)the Administrative Agent, any Lender or the Issuing Bank (as the case may be)shall receive an amount equal to the sum it would have received had no suchdeductions been made, (ii) the Borrower shall make such deductions and (iii)the Borrower shall pay the full amount deducted to the relevant GovernmentalAuthority in accordance with applicable law.

###  

### (b)           Inaddition, the Borrower shall pay any Other Taxes to the relevant GovernmentalAuthority in accordance with applicable law.

###  

### (c)           TheBorrower shall indemnify the Administrative Agent, each Lender and the IssuingBank, within five (5) Business Days after written demand therefor, for the fullamount of any Indemnified Taxes or Other Taxes paid by the AdministrativeAgent, such Lender or the Issuing Bank, as the case may be, on or with respectto any payment by or on account of any obligation of the Borrower hereunder(including Indemnified Taxes or Other Taxes imposed or asserted on orattributable to amounts payable under this Section) and any penalties, interestand reasonable expenses arising therefrom or with respect thereto, whether ornot such Indemnified Taxes or Other Taxes were correctly or legally imposed orasserted by the relevant Governmental Authority.  A certificate as to the amount of such payment or liability deliveredto the Borrower by a Lender or the Issuing Bank, or by the Administrative Agenton its own behalf or on behalf of a Lender or the Issuing Bank, shall beconclusive absent manifest error.

###  

### (d)           Assoon as practicable after any payment of Indemnified Taxes or Other Taxes bythe Borrower to a Governmental Authority, the Borrower shall deliver to theAdministrative Agent the original or a certified copy of a receipt issued bysuch Governmental Authority evidencing such payment, a copy of the returnreporting such payment or other evidence of such payment reasonablysatisfactory to the Administrative Agent.

###  

### (e)           AnyForeign Lender that is entitled to an exemption from or reduction ofwithholding tax under the Code or any treaty to which the United States is aparty, with respect to payments under this Agreement shall deliver to theBorrower (with a copy to the

###  

### 37

### 

###  

### AdministrativeAgent), at the time or times prescribed by applicable law, such properlycompleted and executed documentation prescribed by applicable law or reasonablyrequested by the Borrower as will permit such payments to be made withoutwithholding or at a reduced rate. Without limiting the generality of the foregoing, each Foreign Lenderagrees that it will deliver to the Administrative Agent and the Borrower (or inthe case of a Participant, to the Lender from which the related participationshall have been purchased), as appropriate, two (2) duly completed copies of(i) Internal Revenue Service Form W-8 ECI, or any successor form thereto,certifying that the payments received from the Borrower hereunder areeffectively connected with such Foreign Lender’s conduct of a trade or businessin the United States; or (ii) Internal Revenue Service Form W-8 BEN, or anysuccessor form thereto, certifying that such Foreign Lender is entitled tobenefits under an income tax treaty to which the United States is a party whichreduces the rate of withholding tax on payments of interest; or (iii) InternalRevenue Service Form W-8 BEN, or any successor form prescribed by the InternalRevenue Service, together with a certificate (A) establishing that the paymentto the Foreign Lender qualifies as “portfolio interest” exempt from U.S.withholding tax under Code section 871(h) or 881(c), and (B) stating that(1) the Foreign Lender is not a bank for purposes of Codesection 881(c)(3)(A), or the obligation of the Borrower hereunder is not,with respect to such Foreign Lender, a loan agreement entered into in theordinary course of its trade or business, within the meaning of that section;(2) the Foreign Lender is not a 10% shareholder of the Borrower within themeaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the ForeignLender is not a controlled foreign corporation that is related to the Borrowerwithin the meaning of Code section 881(c)(3)(C); or (iv) such otherInternal Revenue Service forms as may be applicable to the Foreign Lender,including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to the Borrower and theAdministrative Agent such forms on or before the date that it becomes a partyto this Agreement (or in the case of a Participant, on or before the date suchParticipant purchases the related participation).  In addition, each such Foreign Lender shall deliver such formspromptly upon the obsolescence or invalidity of any form previously deliveredby such Foreign Lender.  Each suchForeign Lender shall promptly notify the Borrower and the Administrative Agentat any time that it determines that it is no longer in a position to provideany previously delivered certificate to the Borrower (or any other form ofcertification adopted by the Internal Revenue Service for such purpose).

###  

## **Section 2.21****.****       ****Payments Generally; ProRata Treatment; Sharing of Set-offs**.

##  

### (a)           TheBorrower shall make each payment required to be made by it hereunder (whetherof principal, interest, fees or reimbursement of LC Disbursements, or ofamounts payable under Sections 2.18, 2.19 or 2.20, or otherwise) (i) prior to12:00 noon (Atlanta, Georgia time), in the case of payments in Dollars and (ii)prior to 12:00 noon (at the Applicable Lending Office where the applicableForeign Currency Payment Account is maintained) in the case of payments in anAvailable Foreign Currency, on the date when due, in immediately availablefunds, free and clear of any defenses, rights of set-off, counterclaim, orwithholding or deduction of taxes.  Anyamounts received after such time on any date may, in the discretion of theAdministrative Agent, be deemed to have been received on the next succeedingBusiness Day for purposes of calculating interest thereon.  All such payments shall be made to theAdministrative Agent at the Payment Office or at the applicable Foreign 

###  

### 38

### 

###  

### CurrencyPayment Account, as the case may be, except payments to be made directly to theIssuing Bank or Swingline Lender as expressly provided herein and except thatpayments pursuant to Sections 2.18, 2.19 or 2.20 and 10.3 shall be madedirectly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received byit for the account of any other Person to the appropriate recipient promptlyfollowing receipt thereof.  If anypayment hereunder shall be due on a day that is not a Business Day, the datefor payment shall be extended to the next succeeding Business Day, and, in thecase of any payment accruing interest, interest thereon shall be made payablefor the period of such extension.  Allpayments hereunder shall be made in Dollars; provided, however, that allpayments of principal and interest with respect to Eurodollar Loans denominatedin an Available Foreign Currency shall be made in accordance withSection 2.6(b).

###  

### (b)           Ifat any time insufficient funds are received by and available to theAdministrative Agent to pay fully all amounts of principal, unreimbursed LCDisbursements, interest and fees then due hereunder, such funds shall beapplied (i) first, towards payment of interest and fees then due hereunder, ratablyamong the parties entitled thereto in accordance with the amounts of interestand fees then due to such parties, and (ii) second, towards payment ofprincipal and unreimbursed LC Disbursements then due hereunder, ratably amongthe parties entitled thereto in accordance with the amounts of principal andunreimbursed LC Disbursements then due to such parties.

###  

### (c)           Ifany Lender shall, by exercising any right of set-off or counterclaim orotherwise, obtain payment in respect of any principal of or interest on any ofits Revolving Loans or participations in LC Disbursements or Swingline Loansthat would result in such Lender receiving payment of a greater proportion ofthe aggregate amount of its Revolving Loans and participations in LCDisbursements and Swingline Loans and accrued interest thereon than theproportion received by any other Lender, then the Lender receiving such greaterproportion shall purchase (for cash at face value) participations in theRevolving Loans and participations in LC Disbursements and Swingline Loans ofother Lenders to the extent necessary so that the benefit of all such paymentsshall be shared by the Lenders ratably in accordance with the aggregate amountof principal of and accrued interest on their respective Revolving Loans andparticipations in LC Disbursements and Swingline Loans; provided, that (i) ifany such participations are purchased and all or any portion of the paymentgiving rise thereto is recovered, such participations shall be rescinded andthe purchase price restored to the extent of such recovery, without interest,and (ii) the provisions of this paragraph shall not be construed to apply toany payment made by the Borrower pursuant to and in accordance with the expressterms of this Agreement or any payment obtained by a Lender as considerationfor the assignment of or sale of a participation in any of its Loans orparticipations in LC Disbursements or Swingline Loans to any assignee orparticipant, other than to the Borrower or any Subsidiary or Affiliate thereof(as to which the provisions of this paragraph shall apply).  The Borrower consents to the foregoing andagrees, to the extent it may effectively do so under applicable law, that anyLender acquiring a participation pursuant to the foregoing arrangements mayexercise against the Borrower rights of set-off and counterclaim with respectto such participation as fully as if such Lender were a direct creditor of theBorrower in the amount of such participation.

###  

### 39

### 

###  

### (d)           Unlessthe Administrative Agent shall have received notice from the Borrower prior tothe date on which any payment is due to the Administrative Agent for theaccount of the Lenders or the Issuing Bank hereunder that the Borrower will notmake such payment, the Administrative Agent may assume that the Borrower hasmade such payment on such date in accordance herewith and may, in reliance uponsuch assumption, distribute to the Lenders or the Issuing Bank, as the case maybe, the amount or amounts due.  In suchevent, if the Borrower has not in fact made such payment, then each of theLenders or the Issuing Bank, as the case may be, severally agrees to repay tothe Administrative Agent forthwith on demand the amount so distributed to suchLender or Issuing Bank with interest thereon, for each day from and includingthe date such amount is distributed to it to but excluding the date of paymentto the Administrative Agent, at the greater of the Federal Funds Effective Rateand a rate determined by the Administrative Agent in accordance with bankingindustry rules on interbank compensation.

###  

### (e)           Ifany Lender shall fail to make any payment required to be made by it pursuant toSection 2.4(b), 2.5(b), 2.21(d), 2.22(d) or (e) or 10.3(d), then theAdministrative Agent may, in its discretion (notwithstanding any contraryprovision hereof), apply any amounts thereafter received by the AdministrativeAgent for the account of such Lender to satisfy such Lender’s obligations undersuch Sections until all such unsatisfied obligations are fully paid.

###  

## **Section 2.22****.****       ****Letters of Credit**.

##  

### (a)           Duringthe Availability Period, the Issuing Bank, in reliance upon the agreements ofthe other Lenders pursuant to Section 2.22(d), agrees to issue, at therequest of the Borrower, Letters of Credit for the account of the Borrower onthe terms and conditions hereinafter set forth; provided, that (i) each Letterof Credit shall expire on the earlier of (A) the date one year after the dateof issuance of such Letter of Credit (or in the case of any renewal orextension thereof, one year after such renewal or extension) and (B) the datethat is five (5) Business Days prior to the Revolving Commitment TerminationDate; (ii) each Letter of Credit shall be in a stated amount of at least $100,000; and (iii) the Borrower maynot request any Letter of Credit, if, after giving effect to such issuance (A)the aggregate LC Exposure would exceed the LC Commitment or (B) the aggregateRevolving Credit Exposure of all Lenders would exceed the Aggregate RevolvingCommitment Amount.** **Upon the issuance of each Letter of Credit each Lendershall be deemed to, and hereby irrevocably and unconditionally agrees to,purchase from the Issuing Bank without recourse a participation in such Letterof Credit equal to such Lender’s Pro Rata Share of the aggregate amountavailable to be drawn under such Letter of Credit.  Each issuance of a Letter of Credit shall be deemed to utilizethe Revolving Commitment of each Lender by an amount equal to the amount ofsuch participation.

###  

### (b)           Torequest the issuance of a Letter of Credit (or any amendment, renewal orextension of an outstanding Letter of Credit), the Borrower shall give theIssuing Bank and the Administrative Agent irrevocable written notice at leastthree (3) Business Days prior to the requested date of such issuance specifyingthe date (which shall be a Business Day) such Letter of Credit is to be issued(or amended, extended or renewed, as the case may be), the expiration date ofsuch Letter of Credit, the amount of such Letter of Credit, the name andaddress of the

###  

### 40

### 

###  

### beneficiary  thereof and such other information as shallbe necessary to prepare, amend, renew or extend such Letter of Credit.  In addition to the satisfaction of theconditions in Article 3, the issuance of such Letter of Credit (or anyamendment which increases the amount of such Letter of Credit) will be subjectto the further conditions that such Letter of Credit shall be in such form andcontain such terms as the Issuing Bank shall approve and that the Borrowershall have executed and delivered any additional applications, agreements andinstruments relating to such Letter of Credit as the Issuing Bank shallreasonably require; provided, that in the event of any conflict between suchapplications, agreements or instruments and this Agreement, the terms of thisAgreement shall control.

###  

### (c)           Atleast two Business Days prior to the issuance of any Letter of Credit, theIssuing Bank will confirm with the Administrative Agent (by telephone or inwriting) that the Administrative Agent has received such notice and if not, theIssuing Bank will provide the Administrative Agent with a copy thereof.  Unless the Issuing Bank has received noticefrom the Administrative Agent on or before the Business Day immediatelypreceding the date the Issuing Bank is to issue the requested Letter of Credit(1) directing the Issuing Bank not to issue the Letter of Credit because suchissuance is not then permitted hereunder because of the limitations set forthin Section 2.22(a) or that one or more conditions specified inArticle 3are not then satisfied, then, subject to the terms and conditionshereof, the Issuing Bank shall, on the requested date, issue such Letter ofCredit in accordance with the Issuing Bank’s usual and customary businesspractices.

###  

### (d)           TheIssuing Bank shall examine all documents purporting to represent a demand forpayment under a Letter of Credit promptly following its receipt thereof.  The Issuing Bank shall notify the Borrowerand the Administrative Agent of such demand for payment and whether the IssuingBank has made or will make a LC Disbursement thereunder; provided, that anyfailure to give or delay in giving such notice shall not relieve the Borrowerof its obligation to reimburse the Issuing Bank and the Lenders with respect tosuch LC Disbursement.  The Borrowershall be irrevocably and unconditionally obligated to reimburse the IssuingBank for any LC Disbursements paid by the Issuing Bank in respect of suchdrawing, without presentment, demand or other formalities of any kind.  Unless the Borrower shall have notified theIssuing Bank and the Administrative Agent prior to 11:00 a.m. (Atlanta Georgiatime) on the Business Day immediately prior to the date on which such drawingis honored that the Borrower intends to reimburse the Issuing Bank for theamount of such drawing in funds other than from the proceeds of RevolvingLoans, the Borrower shall be deemed to have timely given a Notice of RevolvingBorrowing to the Administrative Agent requesting the Lenders to make a BaseRate Borrowing****on the date onwhich such drawing is honored in an exact amount due to the Issuing Bank;provided, that for purposes solely of such Borrowing, the conditions precedentsset forth in Section 3.2 hereof shall not be applicable.  The Administrative Agent shall notify theLenders of such Borrowing in accordance with Section 2.3, and each Lendershall make the proceeds of its Base Rate Loan included in such Borrowingavailable to the Administrative Agent for the account of the Issuing Bank inaccordance with Section 2.5.  Theproceeds of such Borrowing shall be applied directly by the AdministrativeAgent to reimburse the Issuing Bank for such LC Disbursement**.**

###  

### 41

### 

###  

### (e)           Iffor any reason a Base Rate Borrowing may not be (as determined in the solediscretion of the Administrative Agent), or is not, made in accordance with theforegoing provisions, then each Lender (other than the Issuing Bank) shall beobligated to fund the participation that such Lender purchased pursuant tosubsection (a) in an amount equal to its Pro Rata Share****of such LC Disbursement on and as of thedate which such Base Rate Borrowing should have occurred.** **EachLender’s obligation to fund its participation shall be absolute andunconditional and shall not be affected by any circumstance, including withoutlimitation (i) any setoff, counterclaim, recoupment, defense or other rightthat such Lender or any other Person may have against the Issuing Bank or anyother Person for any reason whatsoever, (ii) the existence of a Default or anEvent of Default or the termination of the Aggregate Revolving Commitments,(iii) any adverse change in the condition (financial or otherwise) of theBorrower or any of its Subsidiaries, (iv) any breach of this Agreement by theBorrower or any other Lender, (v) any amendment, renewal or extension of anyLetter of Credit or (vi) any other circumstance, happening or event whatsoever,whether or not similar to any of the foregoing.  On the date that such participation is required to be funded,each Lender shall promptly transfer, in immediately available funds, the amountof its participation to the Administrative Agent for the account of the IssuingBank.  Whenever, at any time after theIssuing Bank has received from any such Lender the funds for its participationin a LC Disbursement, the Issuing Bank (or the Administrative Agent on itsbehalf) receives any payment on account thereof, the Administrative Agent orthe Issuing Bank, as the case may be, will distribute to such Lender its ProRata Share of such payment; provided, that if such payment is required to bereturned for any reason to the Borrower or to a trustee, receiver, liquidator,custodian or similar official in any bankruptcy proceeding, such Lender willreturn to the Administrative Agent or the Issuing Bank any portion thereofpreviously distributed by the Administrative Agent or the Issuing Bank to it.

###  

### (f)            Tothe extent that any Lender shall fail to pay any amount required to be paidpursuant to paragraph (d) above on the due date therefor, such Lender shall payinterest to the Issuing Bank (through the Administrative Agent) on such amountfrom such due date to the date such payment is made at a rate per annum equalto the Federal Funds Rate; provided, that if such Lender shall fail to makesuch payment to the Issuing Bank within three (3) Business Days of such duedate, then, retroactively to the due date, such Lender shall be obligated topay interest on such amount at the Default Rate.

###  

### (g)           Ifany Event of Default shall occur and be continuing, on the Business Day thatthe Borrower receives notice from the Administrative Agent or the RequiredLenders demanding the deposit of cash collateral pursuant to this paragraph,the Borrower shall deposit in an account with the Administrative Agent, in thename of the Administrative Agent and for the benefit of the Issuing Bank andthe Lenders, an amount in cash equal to the LC Exposure as of such date plusany accrued and unpaid fees thereon; provided, that the obligation to depositsuch cash collateral shall become effective immediately, and such deposit shallbecome immediately due and payable, without demand or notice of any kind, uponthe occurrence of any Event of Default with respect to the Borrower describedin clause (g) or (h) of Section 8.1. Such deposit shall be held by the Administrative Agent as collateral forthe payment and performance of the obligations of the Borrower under thisAgreement.  The Administrative Agentshall have exclusive dominion and control, including the exclusive right ofwithdrawal, over such account.

###  

### 42

### 

###  

### Borroweragrees to execute any documents and/or certificates to effectuate the intent ofthis paragraph.  Other than any interestearned on the investment of such deposits, which investments shall be made atthe option and sole discretion of the Administrative Agent and at theBorrower’s risk and expense, such deposits shall not bear interest.  Interest and profits, if any, on suchinvestments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent toreimburse the Issuing Bank for LC Disbursements for which it had not beenreimbursed and to the extent so applied, shall be held for the satisfaction ofthe reimbursement obligations of the Borrower for the LC Exposure at such timeor, if the maturity of the Loans has been accelerated, with the consent of theRequired Lenders, be applied to satisfy other obligations of the Borrower underthis Agreement and the other Loan Documents. If the Borrower is required to provide an amount of cash collateralhereunder as a result of the occurrence of an Event of Default, such amount (tothe extent not so applied as aforesaid) shall be returned to the Borrowerwithin three Business Days after all Events of Default have been cured orwaived.

###  

### (h)           Promptlyfollowing the end of each calendar quarter, the Issuing Bank shall deliver(through the Administrative Agent) to each Lender and the Borrower a reportdescribing the aggregate Letters of Credit outstanding at the end of suchFiscal Quarter.  Upon the request of anyLender from time to time, the Issuing Bank shall deliver to such Lender anyother information reasonably requested by such Lender with respect to eachLetter of Credit then outstanding.

###  

### (i)            TheBorrower’s obligation to reimburse LC Disbursements hereunder shall beabsolute, unconditional and irrevocable and shall be performed strictly inaccordance with the terms of this Agreement under all circumstances whatsoeverand irrespective of any of the following circumstances:

###  

#### (i)            Any lack of validity or enforceability ofany Letter of Credit or this Agreement;

####  

#### (ii)           The existence of any claim, set-off, defenseor other right which the Borrower or any Subsidiary or Affiliate of theBorrower may have at any time against a beneficiary or any transferee of anyLetter of Credit (or any Persons or entities for whom any such beneficiary ortransferee may be acting), any Lender (including the Issuing Bank) or any otherPerson, whether in connection with this Agreement or the Letter of Credit orany document related hereto or thereto or any unrelated transaction;

####  

#### (iii)          Any draft or other document presented under aLetter of Credit proving to be forged, fraudulent or invalid in any respect orany statement therein being untrue or inaccurate in any respect;

####  

#### (iv)          Payment by the Issuing Bank under a Letter ofCredit against presentation of a draft or other document to the Issuing Bankthat does not comply with the terms of such Letter of Credit;

####  

#### 43

#### 

####  

#### (v)           Any other event or circumstance whatsoever,whether or not similar to any of the foregoing, that might, but for theprovisions of this Section, constitute a legal or equitable discharge of, orprovide a right of setoff against, the Borrower’s obligations hereunder; or

####  

#### (vi)          The existence of a Default or an Event ofDefault.

####  

Neither the Administrative Agent, the Issuing Bank, the Lenders nor anyRelated Party of any of the foregoing shall have any liability orresponsibility by reason of or in connection with the issuance or transfer ofany Letter of Credit or any payment or failure to make any payment thereunder(irrespective of any of the circumstances referred to above), or any error,omission, interruption, loss or delay in transmission or delivery of any draft,notice or other communication under or relating to any Letter of Credit(including any document required to make a drawing thereunder), any error ininterpretation of technical terms or any consequence arising from causes beyondthe control of the Issuing Bank; provided, that the foregoing shall notbe construed to excuse the Issuing Bank from liability to the Borrower to theextent of any actual direct damages (as opposed to special, indirect (includingclaims for lost profits or other consequential damages), or punitive damages,claims in respect of which are hereby waived by the Borrower to the extentpermitted by applicable law) suffered by the Borrower that are caused by theIssuing Bank’s failure to exercise due care when determining whether drafts orother documents presented under a Letter of Credit comply with the termsthereof.  The parties hereto expresslyagree, that in the absence of gross negligence or willful misconduct on thepart of the Issuing Bank (as finally determined by a court of competentjurisdiction), the Issuing Bank shall be deemed to have exercised due care ineach such determination.  In furtheranceof the foregoing and without limiting the generality thereof, the parties agreethat, with respect to documents presented that appear on their face to be insubstantial compliance with the terms of a Letter of Credit, the Issuing Bankmay, in its sole discretion, either accept and make payment upon such documentswithout responsibility for further investigation, regardless of any notice orinformation to the contrary, or refuse to accept and make payment upon suchdocuments if such documents are not in strict compliance with the terms of suchLetter of Credit.

 

### (j)            EachLetter of Credit shall be subject to the Uniform Customs and Practices forDocumentary Credits (1993 Revision), International Chamber of CommercePublication No. 500, as the same may be amended from time to time, and, to theextent not inconsistent therewith, the governing law of this Agreement setforth in Section 10.5.

###  

## **Section 2.23****.****       ****Increase of Commitments;Additional Lenders**.

##  

### (a)           Solong as no Event of Default has occurred and is continuing, from time to timeon or after the Closing Date, Borrower may, upon at least 30 days’ writtennotice to the Administrative Agent (who shall promptly provide a copy of suchnotice to each Lender), propose to increase the Aggregate Revolving CommitmentAmount up to an amount not to exceed $100,000,000(the amount of any such increase, the “Additional Commitment Amount”).  Each Lender shall have the right for aperiod of 15 days following receipt of such notice, to elect by written noticeto the Borrower and the Administrative Agent to increase its Revolving

###  

### 44

### 

###  

### Commitment bya principal amount equal to its Pro Rata Share of the Additional CommitmentAmount.  No Lender (or any successorthereto) shall have any obligation to increase its Revolving Commitment or itsother obligations under this Agreement and the other Loan Documents, and anydecision by a Lender to increase its Revolving Commitment shall be made in itssole discretion independently from any other Lender.

###  

### (b)           Ifany Lender shall not elect to increase its Revolving Commitment pursuant tosubsection (a) of this Section, the Borrower may designate another bank orother financial institution (which may be, but need not be, one or more of theexisting Lenders) which at the time agrees to, in the case of any such Personthat is an existing Lender, increase its Revolving Commitment and in the caseof any other such Person (an “Additional Lender”), become a party to thisAgreement; provided, however, that any new bank or financial institution mustbe acceptable to the Administrative Agent and Lead Arranger, each of whoseacceptance will not be unreasonably withheld or delayed.  The sum of the increases in the RevolvingCommitments of the existing Lenders pursuant to this subsection (b) plusthe Revolving Commitments of the Additional Lenders shall not in the aggregateexceed the unsubscribed amount of the Additional Commitment Amount.

###  

### (c)           Anincrease in the aggregate amount of the Revolving Commitments pursuant to thisSection 2.23 shall become effective upon the receipt by the AdministrativeAgent of an agreement in form and substance satisfactory to the AdministrativeAgent signed by the Borrower, by each Additional Lender and by each otherLender whose Revolving Commitment is to be increased, setting forth the newRevolving Commitments of such Lenders and setting forth the agreement of eachAdditional Lender to become a party to this Agreement and to be bound by allthe terms and provisions hereof, together with such evidence of appropriatecorporate authorization on the part of the Borrower with respect to theincrease in the Revolving Commitments and such opinions of counsel for theBorrower with respect to the increase in the Revolving Commitments as theAdministrative Agent may reasonably request.

###  

### (d)           Uponthe acceptance of any such agreement by the Administrative Agent, the AggregateRevolving Commitment Amount shall automatically be increased by the amount ofthe Revolving Commitments added through such agreement and Annex I shallautomatically be deemed amended to reflect the Revolving Commitments of allLenders after giving effect to the addition of such Revolving Commitments.

###  

### (e)           Uponany increase in the aggregate amount of the Revolving Commitments pursuant tothis Section 2.23 that is not pro rata among all Lenders, (x) within fiveBusiness Days, in the case of any Base Rate Loans then outstanding, and at theend of the then current Interest Period with respect thereto, in the case ofany Eurodollar Loans then outstanding, the Borrower shall prepay such Loans intheir entirety and, to the extent the Borrower elects to do so and subject tothe conditions specified in Article 3, the Borrower shall reborrow Loansfrom the Lenders in proportion to their respective Revolving Commitments aftergiving effect to such increase, until such time as all outstanding Loans areheld by the Lenders in such proportion and (y) effective upon such increase,the amount of the participations held by each Lender in each Letter of Creditthen outstanding shall be adjusted such that, after giving effect to such

###  

### 45

### 

###  

### adjustments,the Lenders shall hold participations in each such Letter of Credit in theproportion its respective Revolving Commitment bears to the aggregate RevolvingCommitments after giving effect to such increase.

###  

## **Section 2.24****.****        Mitigation of Obligations. **If any Lender requests compensationunder Section 2.18, or if the Borrower is required to pay anyadditional amount to any Lender or any Governmental Authority for the accountof any Lender pursuant to Section 2.20, then such Lender shall usereasonable efforts to designate a different lending office for funding orbooking its Loans hereunder or to assign its rights and obligations hereunderto another of its offices, branches or affiliates, if, in the sole judgment ofsuch Lender, such designation or assignment (i) would eliminate or reduceamounts payable under Section 2.18 or Section 2.20, asthe case may be, in the future and (ii) would not subject such Lender to anyunreimbursed cost or expense and would not otherwise be disadvantageous to suchLender.  The Borrower hereby agrees topay all costs and expenses incurred by any Lender in connection with suchdesignation or assignment.

##  

## **Section 2.25.****        Replacement of Lenders**.  If any Lender requests compensation under Section 2.18,or if the Borrower is required to pay any additional amount to any Lender orany Governmental Authority of the account of any Lender pursuant to Section 2.20,or if any Lender defaults in its obligation to fund Loans hereunder, then theBorrower may, at its sole expense and effort, upon notice to such Lender andthe Administrative Agent, require such Lender to assign and delegate, withoutrecourse (in accordance with and subject to the restrictions set forth in Section 10.4(b)all its interests, rights and obligations under this Agreement to an assigneethat shall assume such obligations (which assignee may be another Lender); provided,that (i) the Borrower shall have received the prior written consent of theAdministrative Agent, which consent shall not be unreasonably withheld, (ii)such Lender shall have received payment of an amount equal to the outstandingprincipal amount of all Loans owed to it, accrued interest thereon, accruedfees and all other amounts payable to it hereunder, from the assignee (in thecase of such outstanding principal and accrued interest) and from the Borrower(in the case of all other amounts) and (iii) in the case of a claim forcompensation under Section 2.18 or payments required to be madepursuant to Section 2.20, such assignment will result in areduction in such compensation or payments. A Lender shall not be required to make any such assignment anddelegation if, prior thereto, as a result of a waiver by such Lender orotherwise, the circumstances entitling the Borrower to require such assignmentand delegation cease to apply.

##  

# **ARTICLE 3**CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT

# ** **

## **Section 3.1****.****           Conditions To Effectiveness**.  The obligations of the Lenders (includingthe Swingline Lender) to make Loans and the obligation of the Issuing Bank toissue any Letter of Credit hereunder shall not become effective until the dateon which each of the following conditions is satisfied (or waived in accordancewith Section 10.2).

##  

46

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### (a)           The Administrative Agent shall have receivedall fees and other amounts due and payable on or prior to the Closing Date,including reimbursement or payment of all out-of-pocket expenses (includingreasonable fees, charges and disbursements of counsel to the AdministrativeAgent) required to be reimbursed or paid by the Borrower hereunder, under anyother Loan Document and under any agreement with the Administrative Agent orLead Arranger.

###  

### (b)           The Administrative Agent (or its counsel)shall have received the following:

###  

#### (i)            acounterpart of this Agreement signed by or on behalf of each party hereto orwritten evidence satisfactory to the Administrative Agent (which may includetelecopy transmission of a signed signature page of this Agreement) that suchparty has signed a counterpart of this Agreement;

####  

#### (ii)           dulyexecuted Revolving Credit Notes payable to such Lender and the Swingline Notepayable to the Swingline Lender;

####  

#### (iii)          theParent Guaranty Agreement duly executed by the Parent Guarantor;

####  

#### (iv)          theSubsidiary Guaranty Agreement duly executed by each Material Subsidiary thatis a Domestic Subsidiary;

####  

#### (v)           thePledge Agreements duly executed by each owner of any interest in any Material Subsidiary and suchdocuments and instruments as may be necessary to give a first priorityperfected security interest in the insterests pledged therein to theAdministrative Agent for the benefit of the Lenders;

####  

#### (vi)          copiesof duly executed payoff letters, in form and substance satisfactory toAdministrative Agent, executed by each of the Existing Lenders or the agentthereof;

####  

#### (vii)         acertificate of the Secretary or Assistant Secretary of each Loan Party,attaching and certifying copies of its bylaws and of the resolutions of itsboards of directors, or partnership agreement or limited liability companyagreement, or comparable organizational documents and authorizations,authorizing the execution, delivery and performance of the Loan Documents towhich it is a party and certifying the name, title and true signature of eachofficer of such Loan Party executing the Loan Documents to which it is a party;

####  

#### (viii)        certifiedcopies of the articles or certificate of incorporation, certificate oforganization or limited partnership, or other registered organizational documentsof each Loan Party, together with certificates of good standing or existence,as may be available from the Secretary of State of the jurisdiction oforganization of such Loan Party and each other jurisdiction where

####  

#### 47

#### 

####  

#### such LoanParty is required to be qualified to do business as a foreign corporation;

####  

#### (ix)           afavorable written opinion of****WalterW. Bardenwerper, General Counsel of the Borrower, addressed to theAdministrative Agent and each of the Lenders, and covering such mattersrelating to the Loan Parties, the Loan Documents and the transactionscontemplated therein as the Administrative Agent or the Required Lenders shallreasonably request;

####  

#### (x)            acertificate, dated the Closing Date and signed by a Responsible Officer,certifying that (x) no Default or Event of Default exists, (y) allrepresentations and warranties of each Loan Party set forth in the LoanDocuments are true and correct  and (z)since the date of the financial statements of the Borrower described in Section4.4, there shall have been no change which has had or could reasonably beexpected to have a Material Adverse Effect;

####  

#### (xi)           aduly executed Notice of Borrowing;

####  

#### (xii)          aduly executed funds disbursement agreement, together with a report settingforth the sources and uses of the proceeds hereof

####  

#### (xiii)         certifiedcopies of all consents, approvals, authorizations, registrations and filingsand orders required or advisable to be made or obtained under any Requirementof Law, or by any Contractual Obligation of each Loan Party, in connection withthe execution, delivery, performance, validity and enforceability of the LoanDocuments or any of the transactions contemplated thereby, and such consents,approvals, authorizations, registrations, filings and orders shall be in fullforce and effect and all applicable waiting periods shall have expired, and noinvestigation or inquiry by any governmental authority regarding the CreditFacility or any transaction being financed with the proceeds thereof shall beongoing;

####  

#### (xiv)        certifiedcopies of all agreements, indentures or notes governing the terms of anyMaterial Indebtedness and all other material agreements, documents andinstruments to which any Loan Party or any of its assets are bound;

####  

#### (xv)         certificatesof insurance issued on behalf of insurers of the Borrower and all SubsidiaryLoan Parties or other guarantors, describing in reasonable detail the types andamounts of insurance (property and liability) maintained by the Borrower and allSubsidiary Loan Parties or other guarantors, naming the Administrative Agent asadditional insured.

####  

## **Section3.2****.****           Each Credit Event****.**  The obligation ofeach Lender to make a Loan on the occasion of any Borrowing and of the IssuingBank to issue, amend, renew or extend any Letter of Credit is subject to thesatisfaction of the following conditions:

##  

48

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### (a)           at the time of and immediately after givingeffect to such Borrowing or the issuance, amendment, renewal or extension ofsuch Letter of Credit, as applicable, no Default or Event of Default shallexist; and

###  

### (b)           at the time of and immediately after givingeffect to such Borrowing or the issuance, amendment, renewal or extension ofsuch Letter of Credit, as applicable, all representations and warranties ofeach Loan Party set forth in the Loan Documents shall be true and correct onand as of the date of such Borrowing or the date of issuance, amendment,extension or renewal of such Letter of Credit, in each case before and aftergiving effect thereto; and

###  

### (c)           since the date of the financial statementsof the Borrower described in Section 4.4, there shall have been nochange which has had or could reasonably be expected to have a Material AdverseEffect; and

###  

### (d)           the Borrower shall have delivered therequired Notice of Borrowing; and

###  

### (e)           the Administrative Agent shall have receivedsuch other docu­ments, certificates, information or legal opinions as theAdministrative Agent or the Required Lenders may reasonably request, all inform and substance reasonably satisfactory to the Administrative Agent or theRequired Lenders.

###  

Each Borrowingand each issuance, amendment, extension or renewal of any Letter of Creditshall be deemed to constitute a representation and warranty by the Borrower onthe date thereof as to the matters specified in paragraphs (a), (b) and (c) ofthis Section 3.2.

 

## **Section3.3****.****           Delivery ofDocuments**.  All of the LoanDocuments, certificates, legal opinions and other documents and papers referredto in this Article 3, unless otherwise specified, shall be delivered to theAdministrative Agent for the account of each of the Lenders and, except for theNotes, in sufficient counterparts or copies for each of the Lenders and shallbe in form and substance satisfactory in all respects to the AdministrativeAgent.

##  

# **ARTICLE 4**REPRESENTATIONS AND WARRANTIES

# ** **

The Borrower represents andwarrants to the Administrative Agent and each Lender as follows:

 

## **Section4.1****.****           Existence; Power**.  Each member of the Consolidated Group (i) isduly organized, validly existing and in good standing as a corporation,partnership or limited liability company under the laws of the jurisdiction ofits organization, (ii) has all requisite power and authority to carry on its businessas now conducted, and (iii) is duly qualified to do business, and is ingood standing, in each jurisdiction where such qualification is required,except where a failure to be so qualified could not reasonably be expected toresult in a Material Adverse Effect.

##  

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## **Section4.2****.****           OrganizationalPower; Authorization**.  Theexecution, delivery and performance by each Loan Party of the Loan Documents towhich it is a party are within such Loan Party’s organizational powers and havebeen duly authorized by all necessary organizational, and if required,shareholder, partner or member, action. This Agreement has been duly executed and delivered by the Borrower and****constitutes, and each other Loan Documentto which any Loan Party is a party, when executed and delivered by such LoanParty, will constitute, valid and binding obligations of the Borrower, eachSubsidiary Loan Party or such other Loan Party (as the case may be),enforceable against it in accordance with their respective terms, except as maybe limited by applicable bankruptcy, insolvency, reorganization, moratorium, orsimilar laws affecting the enforcement of creditors’ rights generally and bygeneral principles of equity.

##  

## **Section4.3****.****           Governmental Approvals;No Conflicts**.  The execution,delivery and performance by the Borrower of this Agreement, and by each LoanParty of the other Loan Documents to which it is a party (a) do not require anyconsent or approval of, registration or filing with, or any action by, anyGovernmental Authority, except those as have been obtained or made and are infull force and effect, (b) will not violate any Requirements of Law applicableto any member of the Consolidated Group or any judgment, order or ruling of anyGovernmental Authority, (c) will not violate or result in a default under anyindenture, agreement or other instrument binding on any member of theConsolidated Group or any of its assets or give rise to a right thereunder torequire any payment to be made by any member of the Consolidated Group andwhich could reasonably be expected to have a Material Adverse Effect and (d)will not result in the creation or imposition of any Lien on any asset of anymember of the Consolidated Group, except Liens (if any) created under the LoanDocuments.

##  

## **Section4.4****.****           Financial Statements**.  The Borrower has furnished to each Lender(i) the audited consolidated and consolidating balance sheet of theConsolidated Group as of June 30,2003 and the related consolidated and consolidating statements ofincome, shareholders’ equity and cash flows for the Fiscal Year then endedprepared by PricewaterhouseCoopers and (ii) the unaudited consolidatedbalance sheet of the Consolidated Group as of March 31, 2004, and the related unaudited consolidatedstatements of income and cash flows for the Fiscal Quarter and year-to-dateperiod then ending, certified by a Responsible Officer.  Such financial statements fairly andaccurately present the consolidated and consolidating financial condition ofthe Consolidated Group as of such dates and the consolidated and consolidatingresults of operations for such periods in conformity with GAAP consistentlyapplied, subject to year end audit adjustments and the absence of footnotes inthe case of the statements referred to in clause (ii).  Since June 30, 2003, there have been no changes with respect to theConsolidated Group which have had or could****reasonablybe expected to have, singly or in the aggregate, a Material Adverse Effect.

##  

## **Section4.5****.****          ****Litigation and Environmental Matters**.

##  

### (a)           No litigation, investigation or proceedingof or before any arbitra­tors or Governmental Authorities is pending againstor, to the knowledge of the Loan Parties, threatened against or affecting anymember of the Consolidated Group (i) as to which there is a reasonable

###  

### 50

### 

###  

### possibility of an adverse determination that could reasonably beexpected to have, either individually or in the aggregate, a Material AdverseEffect or (ii) which in any manner draws into question the validity orenforceability of this Agreement or any other Loan Document.

###  

### (b)           Except for the matters set forth on Schedule4.5, no member of the Consolidated Group (i) has failed to comply with anyEnvironmental Law or to obtain, maintain or comply with any permit, license orother approval required under any Environmental Law, (ii) has become subject toany Environmental Liability, (iii) has received notice of any claim withrespect to any Environmental Liability or (iv) knows of any basis for anyEnvironmental Liability.

###  

## **Section4.6****.****           Compliance with Lawsand Agreements**.  Each member ofthe Consolidated Group is in compliance with (a) all Requirements of Law andall judgments, decrees and orders of any Governmental Authority and (b) allindentures, agreements or other instruments binding upon it or its properties.

##  

## **Section4.7****.****           Investment CompanyAct, Etc.**  No member of theConsolidated Group is (a) an “investment company” or is “controlled” by an“investment company”, as such terms are defined in, or subject to regulationunder, the Investment Company Act of 1940, as amended, (b) a “holding company”as defined in, or subject to regulation under, the Public Utility HoldingCompany Act of 1935, as amended or (c) otherwise subject to any otherregulatory scheme limiting its ability to incur debt or requiring any approvalor consent from or registration or filing with, any Governmental Authority inconnection therewith.

##  

## **Section4.8****.****           Taxes**.  Each member of the Consolidated Group andeach other Person for whose taxes any member of the Consolidated Group couldbecome liable for have timely filed or caused to be filed all Federal incometax returns and all other material tax returns that are required to be filed bythem, and have paid all taxes shown to be due and payable on such returns or onany assessments made against it or its property and all other taxes, fees orother charges imposed on it or any of its property by any GovernmentalAuthority, except where the same are currently being contested in good faith byappropriate proceedings and for which the applicable member of the ConsolidatedGroup has set aside on its books adequate reserves in accordance withGAAP.  The charges, accruals andreserves on the books of each member of the Consolidated Group in respect ofsuch taxes are adequate, and no tax liabilities that could be materially inexcess of the amount so provided are anticipated.

##  

## **Section4.9****.****           Margin Regulations**.  None of the proceeds of any of the Loans orLetters of Credit will be used, directly or indirectly, for “purchasing” or“carrying” any “margin stock” within the respective meanings of each of suchterms under Regulation U of the Board of Governors of the Federal ReserveSystem as now and from time to time hereafter in effect or for any purpose thatviolates the provisions of the Regulation U. No member of the Consolidated Group is engaged principally, or as one ofits important activities, in the business of extending credit for the purposeof purchasing or carrying “margin stock.”

##  

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## **Section4.10****.****        ERISA**.  No ERISA Event has occurred or is reasonablyexpected to occur that, when taken together with all other such ERISA Eventsfor which liability is reasonably expected to occur, could reasonably beexpected to result in a Material Adverse Effect.  The present value of all accumulated benefit obligations undereach Plan (based on the assumptions used for purposes of Statement of FinancialStandards No. 87) did not, as of the date of the most recent financialstatements reflecting such amounts, exceed the fair market value of the assetsof such Plan, and the present value of all accumulated benefit obligations ofall underfunded Plans (based on the assumptions used for purposes of Statementof Financial Standards No. 87) did not, as of the date of the most recentfinancial statements reflecting such amounts, exceed the fair market value ofthe assets of all such underfunded Plans.

##  

## **Section4.11****.****       ****Ownershipof Property**.

##  

### (a)           Each member of the Consolidated Group hasgood title to, or valid leasehold interests in, all of its real and personalproperty material to the operation of its business, including all suchproperties reflected in the most recent audited consolidated balance sheet ofthe Consolidated Group referred to in Section 4.4 or purported to have beenacquired by any member of the Consolidated Group after said date (except assold or otherwise disposed of in the ordinary course of business), in each casefree and clear of Liens prohibited by this Agreement.  All leases that individually or in the aggregate are material tothe business or operations of any member of the Consolidated Group are validand subsisting and are in full force.

###  

### (b)           Each member of the Consolidated Group owns,or is licensed, or otherwise has the right, to use, all patents, trademarks,service marks, trade names, copyrights and other intellectual property materialto its business, free from burdensome restrictions or infringements, and theuse thereof by any member of the Consolidated Group does not infringe in anymaterial respect on the rights of any other Person.

###  

### (c)           The properties of each member of theConsolidated Group are insured with financially sound and reputable insurancecompanies which are not Affiliates of any member of the Consolidated Group, insuch amounts with such deductibles and covering such risks as are customarilycarried by companies engaged in similar businesses and owning similarproperties in localities where any member of the Consolidated Group operates.

###  

## **Section4.12.****        Disclosure**.  Each member of the Consolidated Group hasdisclosed to the Lenders all agreements, instruments, and corporate or otherrestrictions to which each member of the Consolidated Group is subject, and allother matters known to any of them, that, individually or in the aggregate,could reasonably be expected to result in a Material Adverse Effect.  Neither the Executive Summary nor any of thereports (including without limitation all reports that any member of theConsolidated Group is required to file, if any, with the Securities andExchange Commission), financial statements, certificates or other informationfurnished by or on behalf of the Borrower to the Administrative Agent or anyLender in connection with the negotiation or syndication of this Agreement orany other Loan Document or delivered hereunder or thereunder (as modified orsupplemented by any other information so furnished) contains any material

##  

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## misstatement of fact or omits to state any material fact necessary tomake the statements therein, taken as a whole, in light of the circumstancesunder which they were made, not misleading.

##  

## **Section4.13.****        Labor Relations**.  There are no strikes, lockouts or othermaterial labor disputes or grievances against any member of the ConsolidatedGroup, or, to the knowledge of the Loan Parties, threatened against oraffecting any member of the Consolidated Group, and no significant unfair laborpractice, charges or grievances are pending against any member of theConsolidated Group, or to the knowledge of the Loan Parties, threatened againstany of them before any Governmental Authority. All payments due from any member of the Consolidated Group pursuant tothe provisions of any collective bargaining agreement have been paid or accruedas a liability on the books of the applicable member of the Consolidated Group,except where the failure to do so could not reasonably be expected to have aMaterial Adverse Effect.

##  

## **Section4.14****.****        Subsidiaries**.  Schedule 4.14 sets forth the name of,the ownership interest of the Borrower in, the jurisdiction of incorporation ororganization of, and the type of, each Subsidiary and identifies each Subsidiarythat is a Subsidiary Loan Party, in each case as of the Closing Date.  The Borrower is a wholly owned Subsidiary ofthe Parent Guarantor.

##  

## **Section4.15.****        Insolvency**.  After giving effect to the execution anddelivery of the Loan Documents, the making of the Loans under this Agreement,no member of the Consolidated Group will be “insolvent,” within the meaning ofsuch term as defined in § 101 of Title 11 of the United States Code, as amendedfrom time to time, or be unable to pay its debts generally as such debts becomedue, or have an unreasonably small capital to engage in any business ortransaction, whether current or contemplated.

##  

## **Section4.16.****        OFAC**.  No Loan Party (i) is a person whose propertyor interest in property is blocked or subject to blocking pursuant to Section 1of Executive Order 13224 of September 23, 2001 Blocking Property andProhibiting Transactions With Persons Who Commit, Threaten to Commit, orSupport Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any dealings ortransactions prohibited by Section 2 of such executive order, or is otherwiseassociated with any such person in any manner violative of Section 2, or (iii)is a person on the list of Specially Designated Nationals and Blocked Personsor subject to the limitations or prohibitions under any other U.S. Departmentof Treasury’s Office of Foreign Assets Control regulation or executive order.

##  

## **Section4.17****.****        Patriot Act**.  Each member of the Consolidated Group is incompliance, in all material respects, with the (i) the Trading with theEnemy Act, as amended, and each of the foreign assets control regulations ofthe United States Treasury Department (31 CFR, Subtitle B, Chapter V, asamended) and any other enabling legislation or executive order relatingthereto, and (ii) the Uniting And Strengthening America By ProvidingAppropriate Tools Required To Intercept And Obstruct Terrorism (USA Patriot Actof 2001).  No part of the proceeds ofthe Loans will be used, directly or indirectly, for any payments to anygovernmental official or employee, political party, official of a politicalparty, candidate for political office, or anyone else acting in an officialcapacity, in order to obtain, retain or direct business or obtain any

##  

53

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## improper advantage, in violation of the United States Foreign CorruptPractices Act of 1977, as amended.

##  

# **ARTICLE 5**AFFIRMATIVE COVENANTS

# ** **

The Borrower covenants andagrees that so long as any Lender has a Commitment hereunder or any Obligationremains unpaid or outstanding:

 

## **Section5.1****.****           Financial Statementsand Other Information**.  TheBorrower will deliver to the Administrative Agent and each Lender:

##  

### (a)           as soon as available and in any event within90 days after the end of each Fiscal Year of Borrower, a copy of the annualaudited report for such Fiscal Year for the Consolidated Group, containing aconsolidated and consolidating balance sheet of the Consolidated Group as ofthe end of such Fiscal Year and the related consolidated and consolidating statementsof income, stockholders’ equity and cash flows (together with all footnotesthereto) of the Consolidated Group for such Fiscal Year, setting forth in eachcase in comparative form the figures for the previous Fiscal Year, all inreasonable detail and reported on, and certified by, PricewaterhouseCoopers orother independent public accountants of nationally recognized standing (withouta “going concern” or like qualification, exception or explanation and withoutany qualification or exception as to scope of such audit) to the effect thatsuch financial statements present fairly in all material respects the financialcondition and the results of operations of the Consolidated Group for suchFiscal Year on a consolidated and consolidating basis in accordance with GAAPand that the examination by such accountants in connection with suchconsolidated and consolidating financial statements has been made in accordancewith generally accepted auditing standards;

###  

### (b)           as soon as available and in any event within45 days after the end of each Fiscal Quarter of the Borrower, an unauditedconsolidated and consolidating balance sheet of the Consolidated Group as ofthe end of such Fiscal Quarter and the related unaudited consolidated andconsolidating statements of in­come and cash flows of the Consolidated Groupfor such Fiscal Quarter and the then elapsed portion of such Fiscal Year,setting forth in each case in comparative form the figures for thecorresponding quarter and the corresponding portion of Borrower’s previousFiscal Year;

###  

### (c)           concurrently with the delivery of thefinancial statements referred to in clauses (a) and (b) above, a ComplianceCertificate signed by the principal executive officer and the principalfinancial officer of the Borrower;

###  

### (d)           concurrently with the delivery of thefinancial statements referred to in clause (a) above, a certificate of theaccounting firm that reported on such financial statements stating whether theyobtained any knowledge during the course of their examination of such financialstatements of any Default or Event of Default (which certificate may be limitedto the extent required by accounting rules or guidelines);

###  

### 54

### 

###  

### (e)           promptly after the same become publicly available,copies of all periodic and other reports, proxy statements and other materialsfiled with the Securities and Exchange Commission, or any GovernmentalAuthority succeeding to any or all functions of said Commission, or with anynational securities exchange, or distributed by any member of the ConsolidatedGroup to its shareholders generally, as the case may be; and

###  

### (f)            promptly following any request therefor,such other information regarding the results of operations, business affairsand financial condition of any member of the Consolidated Group as theAdministrative Agent or any Lender may reasonably request.

###  

## **Section5.2****.****           Notices of MaterialEvents**.  The Borrower willfurnish to the Administrative Agent and each Lender prompt written notice of thefollowing:

##  

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

###  

### (b)           the filing or commencement of any action,suit or proceeding by or before any arbitrator or Governmental Authorityagainst or, to the knowledge of the Borrower, affecting any member of theConsolidated Group which, if adversely determined, could reasonably be expectedto result in a Material Adverse Effect;

###  

### (c)           the occurrence of any event or any otherdevelopment by which the any member of the Consolidated Group (i) fails tocomply with any Environmental Law or to obtain, maintain or comply with anypermit, license or other approval required under any Environmental Law, (ii)becomes subject to any Environmental Liability, (iii) receives notice of anyclaim with respect to any Environmental Liability, or (iv) becomes aware of anybasis for any Environmental Liability and in each of the preceding clauses,which individually or in the aggregate, could reasonably be expected to resultin a Material Adverse Effect;

###  

### (d)           the occurrence of any ERISA Event thatalone, or together with any other ERISA Events that have occurred results in,or could reasonably be expected to result in, a Material Adverse Effect;

###  

### (e)           the occurrence of any default or event ofdefault, or the receipt by any member of the Consolidated Group of any writtennotice of an alleged default or event of default, respect of any MaterialIndebtedness; and

###  

### (f)            any other development that results in, orcould reasonably be expected to result in, a Material Adverse Effect.

###  

### (g)           Each notice delivered under this Sectionshall be accompanied by a written statement of a Responsible Officer settingforth the details of the event or development requiring such notice and anyaction taken or proposed to be taken with respect thereto.

###  

## **Section5.3****.****           Existence; Conductof Business**.  The Borrower willcause each member of the Consolidated Group to do or cause to be done allthings necessary to preserve, renew and maintain in full force and effect itslegal existence and its respective rights, licenses, permits,

##  

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## privileges, franchises, patents, copyrights, trademarks and trade namesmaterial to the conduct of its business and will continue to engage in the samebusiness as presently conducted or such other businesses that are reasonablyrelated thereto; provided, that nothing in this Section shall prohibitany merger, consolidation, liquidation or dissolution permitted under Section7.3.

##  

## **Section5.4.****           Compliance withLaws, Etc.** The Borrower willcause each member of the Consolidated Group to comply with all laws, rules,regulations and requirements of any Governmental Authority applicable to itsbusiness and properties, including without limitation, all Environmental Laws,ERISA and OSHA, except where the failure to do so, either individually or inthe aggregate, could not reasonably be expected to result in a Material AdverseEffect.

##  

## **Section5.5****.****           Payment ofObligations.**  The Borrower willcause each member of the Consolidated Group to pay and discharge at or beforematurity, all of its obligations and liabilities (including without limitationall tax liabilities and claims that could result in a statutory Lien) beforethe same shall become delinquent or in default, except where (a) the validityor amount thereof is being contested in good faith by appropriate proceedings,(b) the applicable member of the Consolidated Group has set aside on its booksadequate reserves with respect thereto in accordance with GAAP and (c) thefailure to make payment pending such contest could not reasonably be expectedto result in a Material Adverse Effect.

##  

## **Section5.6.****           Books and Records**.  The Borrower will cause each member of theConsolidated Group to keep proper****booksof record and account in which full, true and correct entries shall be made ofall dealings and transactions in relation to its business and activities to theextent necessary to prepare the consolidated financial statements of theConsolidated Group in conformity with GAAP.

##  

## **Section5.7****.****          ****Visitation, Inspection,Etc.**  The Borrower will cause each memberof the Consolidated Group to permit any representative of the AdministrativeAgent or any Lender, to visit and inspect its properties, to examine its booksand records and to make copies and take extracts therefrom, and to discuss itsaffairs, finances and accounts with any of its officers and with itsindependent certified public accountants, all at such reasonable times and asoften as the Administrative Agent or any Lender may reasonably request afterreasonable prior notice to the Borrower or other member of the ConsolidatedGroup; provided, however, if an Event ofDefault has occurred and is continuing, no prior notice shall be required.

##  

## **Section5.8.****           Maintenance ofProperties;****Insurance**.  The Borrower will cause each member of theConsolidated Group to (a) keep and maintain all property material to theconduct of its business in good working order and condition, ordinary wear andtear excepted, (b) maintain with financially sound and reputable insurancecompanies, insurance with respect to its properties and business, and theproperties and business of its Subsidiaries, against loss or damage of thekinds customarily insured against by companies in the same or similarbusinesses operating in the same or similar locations, and (c) at all timesshall name Administrative Agent as additional insured on all general liabilitypolicies of the members of the Consolidated Group.

##  

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## **Section5.9****.****           Use of Proceeds andLetters of Credit**.  The Borrowerwill use the proceeds of all Loans to refinance existing debt on the ClosingDate, to finance working capital needs, fund permitted acquisitions, makePermitted Investments and stock repurchases, and for other general corporatepurposes of the Borrower and its Subsidiaries. No part of the proceeds of any Loan will be used, whether directly orindirectly, for any purpose that would violate any rule or regulation of theBoard of Governors of the Federal Reserve System, including Regulations T, U orX.  All Letters of Credit will be usedfor general corporate purposes.

##  

## **Section5.10****.****       ****AdditionalSubsidiaries**.

##  

### (a)           If any Domestic Subsidiary becomes aMaterial Subsidiary after the Closing Date, or any Material Subsidiary isacquired or formed after the Closing Date, the Borrower will, within ten (10)Business Days after any such Subsidiary becomes a Material Subsidiary, or suchMaterial Subsidiary is acquired or formed, notify the Administrative Agent andthe Lenders thereof and will (i) cause such Material Subsidiary, if it is aDomestic Subsidiary, to become a Subsidiary Loan Party and deliver with theSubsidiary Loan Guaranty, supporting resolutions, incumbency certificates,corporate formation and organizational documentation and opinions of counsel asthe Agent may reasonably request, and (ii) deliver stock certificates andrelated pledge agreements or pledge joinder agreements evidencing the pledge of100% of the Capital Stock of such Domestic Subsidiary, together with undatedstock or other transfer powers executed in blank.

###  

### (b)           If, at any time, the aggregate revenue orassets (on a non-consolidated basis) of the Borrower and those Subsidiariesthat are then Subsidiary Loan Parties are less than the Aggregate SubsidiaryThreshold, then the Borrower shall cause one or more other Subsidiaries tobecome additional Subsidiary Loan Parties, as provided in thisSection 5.10, within ten (10) Business Days after such revenues or assetsbecome less than the Aggregate Subsidiary Threshold so that after including therevenue or assets of any such additional Subsidiary Loan Parties, the aggregaterevenue or assets (on a non-consolidated basis) of the Borrower and all suchSubsidiary Loan Parties would equal or exceed the Aggregate SubsidiaryThreshold.

###  

### (c)           If at any time, any Foreign Subsidiary ofthe Borrower becomes a Material Subsidiary of the Borrower, the Borrower shall promptly (i) notify theAdministrative Agent thereof, and shall promptly (and in any event within 30days) deliver stock certificates and related pledge agreements or pledgejoinder agreements evidencing the pledge of 66**%**of the Voting Stock of such Foreign Subsidiary to the extent such Voting Stockis owned by the Borrower or a Domestic Subsidiary, in each case together withundated stock or other transfer powers executed in blank, and (ii) deliver withsuch pledge agreements or pledge joinder agreements supporting resolutions,incumbency certificates, corporate formation and organizational documentationand opinions of counsel as the Administrative Agent may reasonably request.

###  

### (d)           The Borrower may elect at any time to haveany Subsidiary become an additional Subsidiary Loan Party as provided in thisSection 5.10.

###  

### 57

### 

###  

### (e)           Upon the occurrence and during thecontinuation of any Event of Default, if the Required Lenders so direct, theBorrower shall (i) cause all of its Subsidiaries to become additionalSubsidiary Loan Parties, as provided in this Section 5.10, within ten (10)Business Days after the Borrower’s receipt of written confirmation of suchdirection from the Administrative Agent.

###  

### (f)            A Subsidiary shall become an additionalSubsidiary Loan Party by executing and delivering to the Administrative Agent aSubsidiary Guaranty Supplement, accompanied by (i) all other LoanDocuments related thereto, (ii) certified copies of certificates orarticles of incorporation or organization, by-laws, membership operatingagreements, and other organizational documents, appropriate authorizingresolutions of the board of directors of such Subsidiaries, and opinions ofcounsel comparable to those delivered pursuant to Section 3.1, and (iii) suchother documents as the Administrative Agent may reasonably request.  No Subsidiary that becomes a Subsidiary LoanParty shall thereafter cease to be a Subsidiary Loan Party or be entitled to bereleased or discharged from its obligations under the Subsidiary GuarantyAgreement.

###  

# **ARTICLE 6**FINANCIAL COVENANTS

# ** **

The Borrower covenants andagrees that so long as any Lender has a Commitment hereunder or any Obligationremains unpaid or outstanding:

 

## **Section6.1****.****           Leverage Ratio**.  The Borrower shall maintain at all times aLeverage Ratio of not greater than 2.00:1.00.

##  

## **Section6.2.****           Fixed ChargeCoverage Ratio**.  The Borrowerwill maintain, as of the end of each Fiscal Quarter, commencing with the FiscalQuarter ending September 30, 2004,a Fixed Charge Coverage****Ratio ofnot less than 1.75:1.00:

##  

## **Section6.3.****           Minimum AssetCoverage Ratio.**  The Borrowershall at all times maintain a Minimum Asset Coverage Ratio of not less than1.50:1.00.

##  

# **ARTICLE 7**NEGATIVE COVENANTS

# ** **

The Borrower covenants andagrees that so long as any Lender has a Commitment hereunder or any Obligationremains outstanding:

 

## **Section7.1****.****           Indebtedness andPreferred Equity**.  The Borrowerwill not cause or permit any member of the Consolidated Group to create, incur,assume or suffer to exist any Indebtedness, except:

##  

### (a)           Indebtedness created pursuant to the LoanDocuments;

###  

### 58

### 

###  

### (b)           Indebtedness of the Consolidated Groupexisting on the date hereof and set forth on Schedule 7.1 and extensions,renewals and replacements of any such Indebtedness that do not increase theoutstanding principal amount thereof (immediately prior to giving effect tosuch extension, renewal or replacement) or shorten the maturity or the weightedaverage life thereof;

###  

### (c)           Indebtedness of any member of theConsolidated Group incurred to finance the acquisition, construction orimprovement of any fixed or capital assets, including Capital LeaseObligations, and any Indebtedness assumed in connection with the acquisition ofany such assets or secured by a Lien on any such assets prior to theacquisition thereof; provided, that such Indebtedness is incurred prior to orwithin 90 days after such acquisition or the completion of such construction orimprovements or extensions, renewals, and replacements of any such Indebtednessthat do not increase the outstanding principal amount thereof (immediatelyprior to giving effect to such extension, renewal or replacement) or shortenthe maturity or the weighted average life thereof; provided further, that theaggregate principal amount of such Indebtedness does not exceed $2,000,000 atany time outstanding;

###  

### (d)           Indebtedness of the Borrower owing to anySubsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary;provided, that any such Indebtedness that is owed to a Subsidiary that is not aSubsidiary Loan Party shall be subject to Section 7.4;

###  

### (e)           Guarantees by the Borrower of Indebtednessof any Subsidiary and by any Subsidiary of Indebtedness of the Borrower or anyother Subsidiary; provided, that Guarantees by any Loan Party of Indebtednessof any Subsidiary that is not a Subsidiary Loan Party shall be subject toSection 7.4;

###  

### (f)            Indebtedness of any Person which becomes aSubsidiary after the date of this Agreement; provided, that (i) suchIndebtedness exists at the time that such Person becomes a Subsidiary and isnot created in contemplation of or in connection with such Person becoming aSubsidiary and (ii) the aggregate principal amount of such Indebtednesspermitted hereunder shall not exceed $5,000,000 outstanding at any time;

###  

### (g)           Indebtedness in respect of HedgingObligations permitted by Section 7.10;

###  

### (h)           Indebtedness by the Borrower in respect ofany guaranty of the Employee Stock Loans not to exceed an aggregate principalamount of $360,000; and

###  

### (i)            other unsecured Indebtedness of the Borroweror its Subsidiaries in an aggregate principal amount not to exceed $15,000,000at any time outstanding.

###  

The Borrower will not cause orpermit any member of the Consolidated Group to issue any preferred stock orother preferred equity interests that (i) matures or is mandatorily redeemablepursuant to a sinking fund obligation or otherwise, (ii) is or may becomeredeemable or repurchaseable by any member of the Consolidated Group at theoption of the holder thereof, in whole or in part or (iii) is convertible orexchangeable at the option of the holder thereof for Indebtedness or preferredstock or any other preferred equity interests described in this

 

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paragraph, on or prior to, inthe case of clause (i), (ii) or (iii), the first anniversary of the RevolvingCommitment Termination Date.

 

## **Section7.2****.****           Negative Pledge.**  The Borrower will not cause or permit anymember of the Consolidated Group to create, incur, assume or suffer to existany Lien on any of its assets or property now owned or hereafter acquired or,except:

##  

### (a)           Permitted Encumbrances;

###  

### (b)           any Liens created pursuant to the LoanDocuments;

###  

### (c)           any Liens on any property or asset of anymember of the Consolidated Group existing on the Closing Date set forth onSchedule 7.2; provided, that such Lien shall not apply to any other property orasset of such member;

###  

### (d)           purchase money Liens upon or in any fixed orcapital assets to secure the purchase price or the cost of construction orimprovement of such fixed or capital assets or to secure Indebtedness incurredsolely for the purpose of financing the acquisition, construction orimprovement of such fixed or capital assets (including Liens securing****any Capital Lease Obligations); provided,that (i) such Lien secures Indebtedness permitted by Section 7.1(c), (ii) suchLien attaches to such asset concurrently or within 90 days after theacquisition, improvement or completion of the construction thereof; (iii) suchLien does not extend to any other asset; and (iv) the Indebtedness securedthereby does not exceed the cost of acquiring, constructing or improving suchfixed or capital assets; and

###  

### (e)           extensions, renewals, or replacements of anyLien referred to in paragraphs (a) through (c) of this Section; provided, thatthe principal amount of the Indebtedness secured thereby is not increased andthat any such extension, renewal or replacement is limited to the assetsoriginally encumbered thereby.

###  

## **Section7.3.****          ****Fundamental Changes**.

##  

### (a)           The Borrower will not cause or permit anymember of the Consolidated Group to merge into or consolidate into any otherPerson, or permit any other Person to merge into or consolidate with it, orsell, lease, transfer or otherwise dispose of (in a single transaction or aseries of transactions) all or substantially all of its assets (in each case,whether now owned or hereafter acquired) or all or substantially all of thestock of any of its Subsidiaries****(ineach case, whether now owned or hereafter acquired)****or liquidate or dissolve; provided*,*that if at the timethereof and immediately after giving effect thereto, no Default or Event ofDefault shall have occurred and be continuing (i) the Borrower or anySubsidiary may merge with a Person if the Borrower (or such Subsidiary if theBorrower is not a party to such merger) is the surviving Person, (ii) anySubsidiary may merge into another Subsidiary; provided, that if any party tosuch merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be thesurviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwisedispose of all or substantially all of its assets to the Borrower or to aSubsidiary Loan Party and (iv) any Subsidiary (other than a Subsidiary LoanParty) may liquidate or dissolve if the Borrower determines in good faith that

###  

### 60

### 

###  

### such liquidation or dissolution is in the best interests of theBorrower and is not materially disadvantageous to the Lenders; provided, thatany such merger involving a Person that is not a wholly-owned Subsidiaryimmediately prior to such merger shall not be permitted unless also permittedby Section 7.4.

###  

### (b)           The Borrower will not cause or permit anymember of the Consolidated Group to engage in any business other thanbusinesses of the type conducted by the Consolidated Group on the date hereofand businesses reasonably related thereto.

###  

## **Section7.4****.****           Investments, Loans,Etc.**  The Borrower will notcause or permit any member of the Consolidated Group to purchase, hold oracquire (including pursuant to any merger with any Person that was not awholly-owned Subsidiary prior to such merger), any common stock, evidence ofindebtedness or other securities (including any option, warrant, or other rightto acquire any of the foregoing) of, make or permit to exist any loans oradvances to, Guarantee any obligations of, or make or permit to exist anyinvestment or any other interest in, any other Person (all of the foregoingbeing collectively called “Investments”), or purchase or otherwiseacquire (in one transaction or a series of transactions) any assets of anyother Person that constitute a business unit, or create or form any Subsidiary,except:

##  

### (a)           Investments (other than PermittedInvestments) existing on the date hereof and set forth on Schedule 7.4(including Investments in Subsidiaries) and extensions and renewals thereof;

###  

### (b)           Permitted Investments;

###  

### (c)           Guarantees constituting Indebtednesspermitted by Section 7.1; provided, that the aggregate principal amount of Indebtednessof Subsidiaries that are not Subsidiary Loan Parties that is Guaranteed by anyLoan Party shall be subject to the limitation set forth in clause (d) hereof;

###  

### (d)           Investments made by the Borrower in or toany Subsidiary and by any Subsidiary to the Borrower or in or to anotherSubsidiary; provided, that the aggregate amount of Investments by Loan Partiesin or to, and Guarantees by Loan Parties of Indebtedness of any Subsidiary thatis not a Subsidiary Loan Party (including all such Investments and Guaranteesexisting on the Closing Date) shall not exceed $10,000,000****at any time outstanding;

###  

### (e)           loans or advances to employees, officers ordirectors of the Borrower or any Subsidiary in the ordinary course of businessfor travel, relocation and related expenses; *provided, however*, that theaggregate amount of all such loans and advances does not exceed $500,000 at any time;

###  

### (f)            Hedging Transactions permitted by Section7.10;

###  

### (g)           Employee Stock Loans in an aggregateprincipal amount not to exceed $360,000 at any time; and

###  

### 61

### 

###  

### (h)           OtherInvestments which in the aggregate do not exceed $15,000,000 in any Fiscal Year.

###  

## **Section7.5.****           Restricted Payments**.** **TheBorrower will not cause or permit any member of the Consolidated Group todeclare or make, or agree to pay or make, directly or indirectly, any dividendon any class of its stock, or make any payment on account of, or set apartassets for a sinking or other analogous fund for, the purchase, redemption,retirement, defeasance or other acquisition of, any shares of common stock orIndebtedness subordinated to the Obligations of the Borrower or any Guaranteethereof or any options, warrants, or other rights to purchase such common stockor such Indebtedness, whether now or hereafter outstanding (each, a “RestrictedPayment”), except for (i) dividends payable by the Borrower solely inshares of any class of its common stock, (ii) Restricted Payments made by anySubsidiary to the Borrower or to another Subsidiary, on at least a pro ratabasis with any other shareholders if such Subsidiary is not wholly owned by theBorrower and other wholly owned Subsidiaries and (iii) cash dividends anddistributions paid on the common stock of the Borrower; provided, that (A)no Default or Event of Default has occurred and is continuing at the time suchdividend or distribution is paid or redemption is made, and (B) the aggregate amount of all such Restricted Payments made bythe Borrower in any Fiscal Year does not exceed 25%****ofConsolidated Net Income (if greater than $0) earned during the immediatelypreceding Fiscal Year;

##  

## **Section7.6****.****           Sale of Assets**.**** The Borrower will not cause or permit any member of theConsolidated Group to convey, sell, lease, assign, transfer or otherwisedispose of, any of its assets, business or property, whether now owned orhereafter acquired, or, in the case of any Subsidiary, issue or sell any sharesof such Subsidiary’s common stock to any Person other than the Borrower or anywholly owned Subsidiary of the Borrower (or to qualify directors if required byapplicable law), except:

##  

### (a)           the sale or other disposition for fairmarket value of obsolete or worn out property or other property not necessaryfor operations disposed of in the ordinary course of business;

###  

### (b)           the sale of inventory and PermittedInvestments in the ordinary course of business; and

###  

### (c)           the sale or other disposition of such assetsin an aggregate amount not to exceed $5,000,000in any Fiscal Year.

###  

## **Section7.7****.****           Transactions withAffiliates**.  The Borrower willnot cause or permit any member of the Consolidated Group to sell, lease orotherwise transfer any property or assets to, or purchase, lease or otherwiseacquire any property or assets from, or otherwise engage in any othertransactions with, any of its Affiliates, except (a) in the ordinary course ofbusiness at prices and on terms and conditions not less favorable to theBorrower or such Subsidiary than could be obtained on an arm’s-length basisfrom unrelated third parties, (b) transactions between or among the Borrowerand any Subsidiary Loan Party not involving any other Affiliates, (c) any

##  

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## Restricted Payment permitted by Section 7.5 and (d)provision of financial and other services and the sharing of know-how,technology and office space in the ordinary course of business.

##  

## **Section7.8.****           RestrictiveAgreements**.  The Borrower willnot cause or permit any member of the Consolidated Group to directly orindirectly, enter into, incur or permit to exist any agreement that prohibits,restricts or imposes any condition upon (a) the ability of the Borrower or anySubsidiary to create, incur or permit any Lien upon any of its assets orproperties, whether now owned or hereafter acquired, or (b) the ability of anySubsidiary to pay dividends or other distributions with respect to itscommon stock, to make or repay loans or advances to the Borrower or any otherSubsidiary, to Guarantee Indebtedness of the Borrower or any other Subsidiaryor to transfer any of its property or assets to the Borrower or any Subsidiaryof the Borrower; provided, that the foregoing shall not apply torestrictions or conditions imposed by law or by this Agreement or anyother Loan Document.

##  

## **Section7.9.****           Sale and LeasebackTransactions**.  The Borrower willnot cause or permit any member of the Consolidated Group to enter into anyarrangement, directly or indirectly, whereby it shall sell or transfer anyproperty, real or personal, used or useful in its business, whether now ownedor hereinafter acquired, and thereafter rent or lease such property or otherproperty that it intends to use for substantially the same purpose or purposesas the property sold or transferred.

##  

## **Section7.10.****        Hedging Transactions**.  The Borrower will not cause or permit anymember of the Consolidated Group to enter into any Hedging Transaction, otherthan Hedging Transactions entered into in the ordinary course of business tohedge or mitigate risks to which the Borrower or any Subsidiary is exposed inthe conduct of its business or the management of its liabilities.  Solely for the avoidance of doubt, theBorrower acknowledges that a Hedging Transaction entered into for speculativepurposes or of a speculative nature (which shall be deemed to include anyHedging Transaction under which the Borrower or any of the Subsidiaries is ormay become obliged to make any payment (i) in connection with the purchase byany third party of any common stock or any Indebtedness or (ii) as a result ofchanges in the market value of any common stock or any Indebtedness) is not aHedging Transaction entered into in the ordinary course of business to hedge ormitigate risks.

##  

## **Section7.11.****        Amendment to MaterialDocuments**.  The Borrower willnot cause or permit any member of the Consolidated Group to amend, modify orwaive any of its rights in a manner materially adverse to the Lenders under (a)its certificate of incorporation, bylaws or other organizational documents or(b) any material agreement, if any,disclosed by the Borrower in filings with the U.S. Securities and ExchangeCommission.

##  

## **Section7.12****.****        Accounting Changes**.  The Borrower will not cause or permit anymember of the Consolidated Group to make any significant change in accountingtreatment or reporting practices, except as required by GAAP, or change thefiscal year of the Borrower or of any of its Subsidiaries, except to change thefiscal year of a Subsidiary to conform its fiscal year to that of the Borrower.

##  

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# **ARTICLE 8**EVENTS OF DEFAULT

# ** **

## **Section8.1.****           Events of Default.**  If any of the following events (each an “Eventof Default”) shall occur:

##  

### (a)           the Borrower shall fail to pay any principalof any Loan or of any reimbursement obligation in respect of any LCDisbursement when and as the same shall become due and payable, whether at thedue date thereof or at a date fixed for prepayment or otherwise; or

###  

### (b)           the Borrower shall fail to pay any intereston any Loan or any fee or any other amount (other than an amount payable underclause (a) of this Section 8.1) payable under this Agreement or any other LoanDocument, when and as the same shall become due and payable, and such failureshall continue unremedied for a period of three (3) Business Days; or

###  

### (c)           any representation or warranty made ordeemed made by or on behalf of any member of the Consolidated Group in or inconnection with this Agreement or any other Loan Document (including theSchedules attached thereto) and any amendments or modifications hereof orwaivers hereunder, or in any certificate, report, financial statement or otherdocument submitted to the Administrative Agent or the Lenders by any Loan Partyor any representative of any Loan Party pursuant to or in connection with thisAgreement or any other Loan Document shall prove to be incorrect****in any material respect when made ordeemed made or submitted; or

###  

### (d)           the Borrower shall fail to observe orperform any covenant or agreement contained in Sections 5.1, 5.2, 5.3(with respect to the Borrower’s existence) or Articles 6 or 7; or

###  

### (e)           one or more members of the ConsolidatedGroup shall fail to observe or perform any covenant or agreement contained inthis Agreement (other than those referred to in clauses (a), (b) and (d) above)or any other Loan Document, and such failure shall remain unremedied for30 days after the earlier of (i) any officer of the Borrower becomesaware of such failure, or (ii) notice thereof shall have been given to theBorrower by the Administrative Agent or any Lender; or

###  

### (f)            one or more members of the ConsolidatedGroup (whether as primary obligor or as guarantor or other surety) shall failto pay any principal of, or premium or interest on, any Material Indebtednessthat is outstanding, when and as the same shall become due and payable (whetherat scheduled maturity, required prepayment, acceleration, demand or otherwise),and such failure shall continue after the applicable grace period, if any,specified in the agreement or instrument evidencing or governing suchIndebtedness; or any other event shall occur or condition shall exist under anyagreement or instrument relating to such Indebtedness and shall continue afterthe applicable grace period, if any, specified in such agreement or instrument,if the effect of such event or condition is to accelerate, or permit theacceleration of,

###  

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### 

###  

### the maturity of such Indebtedness; or any such Indebtedness shall bedeclared to be due and payable, or required to be prepaid or redeemed (otherthan by a regularly scheduled required prepayment or redemption), purchased ordefeased, or any offer to prepay, redeem, purchase or defease such Indebtednessshall be required to be made, in each case prior to the stated maturitythereof;

###  

### (g)           one or more members of the ConsolidatedGroup shall (i) commence a voluntary case or other proceeding or file anypetition seeking liquidation, reorganization or other relief under any federal,state or foreign bankruptcy, insolvency or other similar law now or hereafterin effect or seeking the appointment of a custodian, trustee, receiver,liquidator or other similar official of it or any substantial part of itsproperty, (ii) consent to the institution of, or fail to contest in a timelyand appropriate manner, any proceeding or petition described in clause (i) ofthis Section, (iii) apply for or consent to the appointment of a custodian,trustee, receiver, liquidator or other similar official for any member of theConsolidated Group or for a substantial part of any its assets, (iv) file ananswer admitting the material allegations of a petition filed against it in anysuch proceeding, (v) make a general assignment for the benefit of creditors, or(vi) take any action for the purpose of effecting any of the foregoing; or

###  

### (h)           an involuntary proceeding shall be commencedor an involuntary petition shall be filed seeking (i) liquidation,reorganization or other relief in respect of any member of the ConsolidatedGroup or its debts, or any substantial part of its assets, under any federal,state or foreign bankruptcy, insolvency or other similar law now or hereafterin effect or (ii) the appointment of a custodian, trustee, receiver, liquidatoror other similar official for any member of the Consolidated Group or for asubstantial part of its assets, and in any such case, such proceeding orpetition shall remain undismissed for a period of 60 days or an order or decreeapproving or ordering any of the foregoing shall be entered; or

###  

### (i)            one or more members of the ConsolidatedGroup shall become generally unable to pay, shall admit in writing itsinability to pay, or shall fail generally to pay, its debts as they become due;or

###  

### (j)            an ERISA Event shall have occurred that, inthe opinion of the Required Lenders, when taken together with other ERISAEvents that have occurred, could reasonably be expected to result in liabilityto the members of the Consolidated Group in an aggregate amount exceeding$5,000,000; or

###  

### (k)           any****judgmentor order for the payment of money in an amount greater than $10,000,000 inexcess of the Borrower’s insurance available therefor shall be rendered againstany member of the Consolidated Group, and either (i) enforcement proceedingsshall have been commenced by an creditor upon such judgment or order or (ii)there shall be a period of 30 consecutive days during which a stay ofenforcement of such judgment or order, by reason of a pending appeal orotherwise, shall not be in effect; or

###  

### (l)            any****non-monetary****judgment or order shall be renderedagainst any member of the Consolidated Group that could reasonably be expectedto have a Material

###  

### 65

### 

###  

### Adverse Effect, and there shall be a period of 30 consecutive daysduring which a stay of enforcement of such judgment or order, by reason of apending appeal or otherwise, shall not be in effect; or

###  

### (m)          a Change in Control shall occur or exist;

###  

### (n)           any provision of the Parent GuarantyAgreement or any Subsidiary Guaranty Agreement shall for any reason cease to bevalid and binding on, or enforceable against, the Parent Guarantor or anySubsidiary Loan Party, or the Parent Guarantor or any Subsidiary Loan Partyshall so state in writing, or the Parent Guarantor or any Subsidiary Loan Partyshall seek to terminate its Parent Guaranty Agreement or Subsidiary GuarantyAgreement, as the case may be; or

###  

### (o)           a Default or Event of Default under anyother Loan Document;

###  

then, and in every such event(other than an event with respect to the Borrower described in clause (f) or(g) of this Section) and at any time thereafter during the continuance of suchevent, the Administrative Agent may, and upon the written request of theRequired Lenders shall, by notice to the Borrower, take any or all of thefollowing actions, at the same or different times:  (i) terminate the Commitments, whereupon the Commitment ofeach Lender shall terminate immediately, (ii) declare the principal of andany accrued interest on the Loans, and all other Obligations owing hereunder,to be, whereupon the same shall become, due and payable immediately, withoutpresentment, demand, protest or other notice of any kind, all of which arehereby waived by the Borrower, (iii) exercise all remedies contained in anyother Loan Document, and (iv) exercise any other remedies available at law orin equity; and that, if an Event of Default specified in either clause (f) or(g) shall occur, the Commitments shall automatically terminate and theprincipal of the Loans then outstanding, together with accrued interestthereon, and all fees, and all other Obligations shall automatically become dueand payable, without presentment, demand, protest or other notice of any kind,all of which are hereby waived by the Borrower.

 

# **ARTICLE 9**THE ADMINISTRATIVE AGENT

# ** **

## **Section9.1****.****          ****Appointment of Administrative Agent**.

##  

### (a)           Each Lender irrevocably appoints SunTrustBank as the Administrative Agent and authorizes it to take such actions on itsbehalf and to exercise such powers as are delegated to the Administrative Agentunder this Agreement and the other Loan Documents, together with all suchactions and powers that are reasonably incidental thereto.  The Administrative Agent may perform any ofits duties hereunder or under the other Loan Documents by or through any one ormore sub-agents or attorneys-in-fact appointed by the AdministrativeAgent.  The Administrative Agent and anysuch sub-agent or attorney-in-fact may perform any and all of its duties andexercise its rights and powers through their respective Related Parties.  The exculpatory provisions set forth in thisArticle shall apply to any such sub-

###  

### 66

### 

###  

### agent or attorney-in-fact and the Related Parties of the AdministrativeAgent, any such sub-agent and any such attorney-in-fact and shall apply totheir respective activities in connection with the syndication of the creditfacilities provided for herein as well as activities as Administrative Agent.

###  

### (b)           The Issuing Bank shall act on behalf of theLenders with respect to any Letters of Credit issued by it and the documentsassociated therewith until such time and except for so long as theAdministrative Agent may agree at the request of the Required Lenders to actfor the Issuing Bank with respect thereto; provided, that the Issuing Bankshall have all the benefits and immunities (i) provided to the AdministrativeAgent in this Article 9 with respect to any acts taken or omissions suffered bythe Issuing Bank in connection with Letters of Credit issued by it or proposedto be issued by it and the application and agreements for letters of creditpertaining to the Letters of Credit as fully as if the term “AdministrativeAgent” as used in this Article 9 included the Issuing Bank with respect to suchacts or omissions and (ii) as additionally provided in this Agreement withrespect to the Issuing Bank.

###  

## **Section9.2.****           Nature of Duties ofAdministrative Agent**.  TheAdministrative Agent shall not have any duties or obligations except thoseexpressly set forth in this Agreement and the other Loan Documents.  Without limiting the generality of theforegoing, (a) the Administrative Agent shall not be subject to any fiduciaryor other implied duties, regardless of whether a Default or an Event of Defaulthas occurred and is continuing, (b) the Administrative Agent shall not have anyduty to take any discretionary action or exercise any discretionary powers,except those discretionary rights and powers expressly contemplated by the LoanDocuments that the Administrative Agent is required to exercise in writing bythe Required Lenders (or such other number or percentage of the Lenders asshall be necessary under the circumstances as provided in Section 10.2),and (c) except as expressly set forth in the Loan Documents, the AdministrativeAgent shall not have any duty to disclose, and shall not be liable for thefailure to disclose, any information relating to the Borrower or any of itsSubsidiaries that is communicated to or obtained by the Administrative Agent orany of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or nottaken by it, its sub-agents or attorneys-in-fact with the consent or at therequest of the Required Lenders (or such other number or percentage of theLenders as shall be necessary under the circumstances as provided in Section10.2) or in the absence of its own gross negligence or willfulmisconduct.  The Administrative Agentshall not be responsible for the negligence or misconduct of any sub-agents orattorneys-in-fact selected by it with reasonable care.  The Administrative Agent shall not be deemedto have knowledge of any Default or Event of Default unless and until writtennotice thereof (which notice shall include an express reference to such eventbeing a “Default” or “Event of Default” hereunder) is given to theAdministrative Agent by the Borrower or any Lender, and the AdministrativeAgent shall not be responsible for or have any duty to ascertain or inquireinto (i) any statement, warranty or representation made in or in connectionwith any Loan Document, (ii) the contents of any certificate, report or otherdocument delivered hereunder or thereunder or in connection herewith ortherewith, (iii) the performance or observance of any of the covenants,agreements, or other terms and conditions set forth in any Loan Document, (iv)the validity, enforceability, effectiveness or genuineness of any Loan Documentor any other agreement, instrument or document, or (v) the satisfaction of anycondition set forth in Article 3

##  

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## or elsewhere in any Loan Document, other than to confirm receipt ofitems expressly required to be delivered to the Administrative Agent.  The Administrative Agent may consult withlegal counsel (including counsel for the Borrower) concerning all matterspertaining to such duties.

##  

## **Section9.3.****           Lack of Reliance onthe Administrative Agent**.  Eachof the Lenders, the Swingline Lender and the Issuing Bank acknowledges that ithas, independently and without reliance upon the Administrative Agent or anyother Lender and based on such documents and information as it has deemedappropriate, made its own credit analysis and decision to enter into thisAgreement.  Each of the Lenders, the SwinglineLender and the Issuing Bank also acknowledges that it will, independently andwithout reliance upon the Administrative Agent or any other Lender and based onsuch documents and information as it has deemed appropriate, continue to makeits own decisions in taking or not taking of any action under or based on thisAgreement, any related agreement or any document furnished hereunder orthereunder.

##  

## **Section9.4.****           Certain Rights ofthe Administrative Agent**.  Ifthe Administrative Agent shall request instructions from the Required Lenderswith respect to any action or actions (including the failure to act) inconnection with this Agreement, the Administrative Agent shall be entitled torefrain from such act or taking such act, unless and until it shall havereceived instructions from such Lenders; and the Administrative Agent shall notincur liability to any Person by reason of so refraining.  Without limiting the foregoing, no Lendershall have any right of action whatsoever against the Administrative Agent as aresult of the Administrative Agent acting or refraining from acting hereunderin accordance with the instructions of the Required Lenders where required bythe terms of this Agreement.

##  

## **Section9.5.****           Reliance byAdministrative Agent**.  TheAdministrative Agent shall be entitled to rely upon, and shall not incur anyliability for relying upon, any notice, request, certificate, consent,statement, instrument, document or other writing believed by it to be genuineand to have been signed, sent or made by the proper Person.  The Administrative Agent may also rely uponany statement made to it orally or by telephone and believed by it to be madeby the proper Person and shall not incur any liability for relying thereon.  The Administrative Agent may consult withlegal counsel (including counsel for the Borrower), independent publicaccountants and other experts selected by it and shall not be liable for anyaction taken or not taken by it in accordance with the advice of such counsel,accountants or experts.

##  

## **Section9.6.****           The AdministrativeAgent in its Individual Capacity**. The bank serving as the Administrative Agent shall have the same rightsand powers under this Agreement and any other Loan Document in its capacity asa Lender as any other Lender and may exercise or refrain from exercising thesame as though it were not the Administrative Agent; and the terms “Lenders”,“Required Lenders”, “holders of Notes”, or any similar terms shall, unless thecontext clearly otherwise indicates, include the Administrative Agent in itsindividual capacity.  The bank acting asthe Administrative Agent and its Affiliates may accept deposits from, lendmoney to, and generally engage in any kind of business with the Borrower or anySubsidiary or Affiliate of the Borrower as if it were not the AdministrativeAgent hereunder.

##  

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## **Section9.7****.****          ****Successor Administrative Agent**.

##  

### (a)           The AdministrativeAgent may resign at any time by giving notice thereof to the Lenders and theBorrower.  Upon any such resignation,the Required Lenders shall have the right to appoint a successor AdministrativeAgent, subject to the approval by the Borrower provided that no Default orEvent of Default shall exist at such time. If no successor Administrative Agent shall have been so appointed, andshall have accepted such appointment within 30 days after the retiringAdministrative Agent gives notice of resignation, then the retiringAdministrative Agent may, on behalf of the Lenders and the Issuing Bank,appoint a successor Administrative Agent, which shall be a commercial bankorganized under the laws of the United States of America or any state thereofor a bank which maintains an office in the United States, having a combinedcapital and surplus of at least $500,000,000.

###  

### (b)           Upon the acceptance of its appointment asthe Administrative Agent hereunder by a successor, such successorAdministrative Agent shall thereupon succeed to and become vested with all therights, powers, privileges and duties of the retiring Administrative Agent, andthe retiring Administrative Agent shall be discharged from its duties andobligations under this Agreement and the other Loan Documents.  If within 45 days after written notice isgiven of the retiring Administrative Agent’s resignation under this Section 9.7no successor Administrative Agent shall have been appointed and shall haveaccepted such appointment, then on such 45th day (i) the retiringAdministrative Agent’s resignation shall become effective, (ii) the retiringAdministrative Agent shall thereupon be discharged from its duties andobligations under the Loan Documents and (iii) the Required Lenders shallthereafter perform all duties of the retiring Administrative Agent under theLoan Documents until such time as the Required Lenders appoint a successorAdministrative Agent as provided above. After any retiring Administrative Agent’s resignation hereunder, theprovisions of this Article 9 shall continue in effect for the benefit ofsuch retiring Administrative Agent and its representatives and agents inrespect of any actions taken or not taken by any of them while it was servingas the Administrative Agent.

###  

## **Section9.8.****           Authorization toExecute other Loan Documents**. Each Lender hereby authorizes the Administrative Agent to execute onbehalf of all Lenders all Loan Documents other than this Agreement.

##  

# **ARTICLE 10**

# ** **

# **MISCELLANEOUS**

# ** **

## **Section10.1****.****       ****Notices**.

##  

### (a)           Except in the case of notices and othercommunications expressly permitted to be given by telephone, all notices andother communications to any party herein to be effective shall be in writingand shall be delivered by hand or overnight courier service, mailed bycertified or registered mail or sent by telecopy, as follows:

###  

| To the  Borrower: |   | Watson Wyatt  & Company |
|-------------------|--------|-----------------------------|

 

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|                        |   | 1717 H  Street NW                                                                                                              |
|-----------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------|
|                        |   | Washington,  D.C. 20006                                                                                                        |
|                        |   | Attention:  Treasurer                                                                                                     |
|                        |   | Telecopy  Number                                                                                                               |
|                        |   |                                                                                                                           |
| To the Administrative Agent |   |                                                                                                                           |
| or Swingline Lender:        |   | SunTrust Bank                                                                                                                  |
|                        |   | 303 Peachtree Street, N. E.                                                                                                    |
|                        |   | Atlanta, Georgia 30308                                                                                                         |
|                        |   | Attention:                                                                                                                     |
|                        |   | Telecopy Number:                                                                                                               |
|                        |   |                                                                                                                           |
| With a copy  to:            |   | SunTrust  Bank                                                                                                                 |
|                        |   | Agency  Services                                                                                                               |
|                        |   | 303  Peachtree Street, N. E./ 25th Floor                                                                                       |
|                        |   | Atlanta,  Georgia 30308                                                                                                        |
|                        |   | Attention:  Mr. Greg Ponder                                                                                               |
|                        |   | Telecopy  Number:  (404) 658-4906                                                                                         |
|                        |   |                                                                                                                           |
|                        |   | and                                                                                                                            |
|                        |   |                                                                                                                           |
|                        |   | Hunton &  Williams LLP                                                                                                     |
|                        |   | Riverfront  Plaza - East Tower                                                                                                 |
|                        |   | 951 E. Byrd  Street                                                                                                            |
|                        |   | Richmond,  Virginia                                                                                                            |
|                        |   | Attention:  Douglas S. Granger                                                                                            |
|                        |   | Telecopy  Number:  (404) 572-5100                                                                                         |
|                        |   |                                                                                                                           |
| To the Issuing Bank:        |   | SunTrust Bank                                                                                                                  |
|                        |   | 25 Park Place,  N. E./Mail Code 3706                                                                                           |
|                        |   | Atlanta, Georgia 30303                                                                                                         |
|                        |   | Attention:   John Conley                                                                                                  |
|                        |   | Telecopy Number:  (404) 588-8129                                                                                          |
|                        |   |                                                                                                                           |
| To the Swingline Lender:    |   | SunTrust Bank                                                                                                                  |
|                        |   | Agency Services                                                                                                                |
|                        |   | 303 Peachtree Street, N.E./25th  Floor                                                                                         |
|                        |   | Atlanta, Georgia 30308                                                                                                         |
|                        |   | Attention:   Mr. Greg  Ponder                                                                                             |
|                        |   | Telecopy Number:  (404) 658-4906                                                                                          |
|                        |   |                                                                                                                           |
| To any other Lender:        |   | the address set forth in the Administrative  Questionnaire or the Assignment and Acceptance Agreement executed by such  Lender |

 

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Any party hereto may change its address ortelecopy number for notices and other communications hereunder by notice to theother parties hereto.  All such noticesand other communications shall, when transmitted by overnight delivery, orfaxed, be effective when delivered for overnight (next-day) delivery, ortransmitted in legible form by facsimile machine, respectively, or if mailed,upon the third Business Day after the date deposited into the mail or ifdelivered, upon delivery; provided, that notices delivered to theAdministrative Agent, the Issuing Bank or the Swingline Bank shall not beeffective until actually received by such Person at its address specified inthis Section 10.1.

 

### (b)           Any agreement of the Administrative Agentand the Lenders herein to receive certain notices by telephone or facsimile issolely for the convenience and at the request of the Borrower.  The Administrative Agent and the Lendersshall be entitled to rely on the authority of any Person purporting to be aPerson authorized by the Borrower to give such notice and the AdministrativeAgent and Lenders shall not have any liability to the Borrower or other Personon account of any action taken or not taken by the Administrative Agent or theLenders in reliance upon such telephonic or facsimile notice.  The obligation of the Borrower to repay theLoans and all other Obligations hereunder shall not be affected in any way orto any extent by any failure of the Administrative Agent and the Lenders toreceive written confirmation of any telephonic or facsimile notice or thereceipt by the Administrative Agent and the Lenders of a confirmation which isat variance with the terms understood by the Administrative Agent and theLenders to be contained in any such telephonic or facsimile notice.

###  

## **Section10.2****.****       ****Waiver;Amendments**.

##  

### (a)           No failure or delay by the AdministrativeAgent, the Issuing Bank or any Lender in exercising any right or powerhereunder or any other Loan Document, and no course of dealing between theBorrower and the Administrative Agent or any Lender**,**shall operate as a waiver thereof, nor shall any single orpartial exercise of any such right or power or any abandonment ordiscontinuance of steps to enforce such right or power, preclude any other orfurther exercise thereof or the exercise of any other right or power hereunderor thereunder.  The rights and remediesof the Administrative Agent, the Issuing Bank and the Lenders hereunder andunder the other Loan Documents are cumulative and are not exclusive of anyrights or remedies provided by law.  Nowaiver of any provision of this Agreement or any other Loan Document or consentto any departure by the Borrower therefrom shall in any event be effectiveunless the same shall be permitted by paragraph (b) of this Section, and thensuch waiver or consent shall be effective only in the specific instance and forthe purpose for which given.  Withoutlimiting the generality of the foregoing, the making of a Loan or the issuanceof a Letter of Credit shall not be construed as a waiver of any Default orEvent of Default, regardless of whether the Administrative Agent, any Lender orthe Issuing Bank may have had notice or knowledge of such Default or Event ofDefault at the time.

###  

### (b)           No amendment or waiver of any provision ofthis Agreement or the other Loan Documents, nor consent to any departure by theBorrower therefrom, shall in any event be effective unless the same shall be inwriting and signed by the Borrower and the Required

###  

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### 

###  

### Lenders or the Borrower and the Administrative Agent with the consentof the Required Lenders and then such waiver or consent shall be effective onlyin the specific instance and for the specific purpose for which given;provided, that no amendment or waiver shall: (i) increase the Commitment of any Lender without the written consent ofsuch Lender, (ii) reduce the principal amount of any Loan or LCDisbursement or reduce the rate of interest thereon, or reduce any fees payablehereunder, without the written consent of each Lender affected thereby,(iii) postpone the date fixed for any payment of any principal of, orinterest on, any Loan or LC Disbursement or interest thereon or any feeshereunder or reduce the amount of, waive or excuse any such payment, or postponethe scheduled date for the termination or reduction of any Commitment, withoutthe written consent of each Lender affected thereby, (iv) change Section 2.20(b) or (c) in a manner that would alter the pro rata sharing of paymentsrequired thereby , without the written consent of each Lender, (v) change anyof the provisions of this Section or the definition of “Required Lenders” orany other provision hereof specifying the number or percentage of Lenders whichare re­quired to waive, amend or modify any rights hereunder or make anydetermination or grant any consent hereunder, without the consent of eachLender; (vi) release any guarantor or limit the liability of any such guarantorunder any guaranty agreement, without the written consent of each Lender; (vii)release all or substantially all collateral (if any) securing any of theObligations oragree to subordinate any Lien in such collateral to any other creditor of theBorrower or any Subsidiary, without the written consent of each Lender;provided further, that no such agreement shall amend, modify or otherwiseaffect the rights, duties or obligations of the Administrative Agent, theSwingline Bank or the Issuing Bank without the prior written consent of suchPerson.  Notwithstanding the foregoing, anyprovision of this Agreement may be amended by an agreement in writing enteredinto by the Borrower, the Required Lenders and the Administrative Agent (and,if their rights, duties or obligations are affected thereby, the Issuing Bankand the Swingline Lender) if (i) by the terms of such agreement the Commitmentof each Lender not consenting to the amendment provided for therein shallterminate (but such Lender shall continue to be entitled to the benefits ofSections 2.19, 2.20, and 2.21 and 10.3) upon the effectiveness of suchamendment and (ii) at the time such amendment becomes effective, each Lendernot consenting thereto receives payment in full principal of and interestaccrued on each Loan made by it and all other amounts owing to it or accrued forits account under this Agreement and is released from its obligationshereunder.

###  

## **Section10.3****.****       ****Expenses;Indemnification**.

##  

### (a)           The Borrower shall pay (i) all reasonable,out-of-pocket costs and expenses of the Administrative Agent and its Affiliates**,**including the reasonable fees, chargesand disbursements of counsel for the Administrative Agent and its Affiliates,in connection with the syndication of the credit facilities provided forherein, the preparation and administration of the Loan Documents and anyamendments, modifications or waivers thereof (whether or not the transactionscontemplated in this Agreement or any other Loan Document shall beconsummated), (ii) all reasonable out-of-pocket expenses incurred by theIssuing Bank in connection with the issuance, amendment, renewal or extensionof any Letter of Credit or any demand for payment thereunder and (iii) allout-of-pocket costs and expenses (including, without limitation, the reasonablefees, charges and disbursements of outside coun­sel and the allocated cost ofinside counsel) incurred by the Administrative Agent, the Issuing Bank or anyLender in

###  

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### 

###  

### connection with the enforcement or protection of its rights inconnection with this Agreement, including its rights under this Section, or inconnection with the Loans made or any Letters of Credit issued hereunder,including all such out-of-pocket expenses incurred during any workout,restructuring or negotiations in respect of such Loans or Letters of Credit.

###  

### (b)           The Borrower shall indemnify theAdministrative Agent, the Issuing Bank and each Lender, and each Related Partyof any of the foregoing (each, an “Indemnitee”) against, and hold each of themharmless from, any and all costs, losses, liabilities, claims, damages andrelated expenses, including the fees, charges and disbursements of any counselfor any Indemnitee, which may be incurred by any Indemnitee or asserted againstany Indemnitee by any third party or by the Borrower or any other Loan Partyarising out of, in connection with or as a result of (i) the execution ordelivery of this Agreement or any other agreement or instrument contemplatedhereby, the performance by the parties hereto of their respective obligationshereunder or the consummation of any of the transactions contemplated hereby,(ii) any Loan or Letter of Credit or any actual or proposed use of the proceedstherefrom (including any refusal by the Issuing Bank to honor a demand forpayment under a Letter of Credit if the documents presented in connection withsuch demand do not strictly comply with the terms of such Letter of Credit),(iii) any actual or alleged presence or release of Hazardous Materials on orfrom any property owned by the Borrower or any Subsidiary or any EnvironmentalLiability related in any way to the Borrower or any Subsidiary****or (iv)****anyactual or prospective claim, litigation, investigation or proceeding relatingto any of the foregoing, whether based on contract, tort or any other theoryand regardless of whether any Indemnitee is a party thereto; provided, that theBorrower shall not be obligated to indemnify any Indemnitee for any of theforegoing arising out of such Indemnitee’s gross negligence or willfulmisconduct as determined by a court of competent jurisdiction in a final andnonappealable judgment.

###  

### (c)           The Borrower shall pay, and hold theAdministrative Agent and each of the Lenders harmless from and against, any andall present and future stamp, documentary, and other similar taxes with respectto this Agreement and any other Loan Documents, any collateral describedtherein, or any payments due thereunder, and save the Administrative Agent andeach Lender harmless from and against any and all liabilities with respect toor resulting from any delay or omission to pay such taxes.

###  

### (d)           To the extent that the Borrower fails to payany amount required to be paid to the Administrative Agent, the Issuing Bank orthe Swingline Lender under clauses (a), (b) or (c) hereof, each Lenderseverally agrees to pay to the Administrative Agent, the Issuing Bank or theSwingline Lender, as the case may be, such Lender’s Pro Rata Share (determinedas of the time that the unreimbursed expense or indemnity payment is sought) ofsuch unpaid amount; provided, that the unreimbursed expense or indemnifiedpayment, claim, damage, liability or related expense, as the case may be, wasincurred by or asserted against the Administrative Agent, the Issuing Bank orthe Swingline Lender in its capacity as such.

###  

### (e)           To the extent permitted by applicable law,the Borrower shall not assert, and hereby waives, any claim against anyIndemnitee, on any theory of liability, for special, indirect, consequential orpunitive damages (as opposed to actual or direct damages) arising out

###  

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### 

###  

### of, in connection with or as a result of, this Agreement or anyagreement or instrument contemplated hereby, the transactions contemplatedtherein, any Loan or any Letter of Credit or the use of proceeds thereof.

###  

### (f)            All amounts due under this Section shall bepayable promptly after written demand therefor.

###  

## **Section10.4****.****       ****Successorsand Assigns**.

##  

### (a)           The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby, except that the Borrowermay not assign or otherwise transfer any of its rights or obligations hereunderwithout the prior written consent of each Lender (and any attempted assignmentor transfer by the Borrower without such consent shall be null and void).  Nothing in this Agreement, expressed orimplied, shall be construed to confer upon any Person (other than the partieshereto, their respective successors and assigns permitted hereby and, to theextent expressly contemplated hereby, the Related Parties of each of theAdministrative Agent and the Lenders) any legal or equitable right, remedy orclaim under or by reason of this Agreement.

###  

### (b)           Any Lender may assign to one or moreEligible Assignees all or a portion of its rights and obligations under thisAgreement (including all or a portion of its Commitment and the Loans at thetime owing to it); provided that (i) except in the case of an assignment of theentire remaining amount of the assigning Lender’s Commitment and the Loans atthe time owing to it or in the case of an assignment to a Lender, an Affiliateof a Lender or an Approved Fund with respect to a Lender, the aggregate amountof the Commitment (which for this purpose includes Loans outstandingthereunder) of the assigning Lender subject to each such assignment (determinedas of the date the Assignment and Acceptance with respect to such assignment isdelivered to the Administrative Agent) shall not be less than $1,000,000, inthe case of any assignment of a Revolving Loan or reimbursement obligation ofoutstanding Letters of Credit, unless each of the Administrative Agent and, solong as no Event of Default has occurred and is continuing, the Borrowerotherwise consents (each such consent not to be unreasonably withheld ordelayed), (ii) each partial assignment shall be made as an assignment of aproportionate part of all the assigning Lender’s rights and obligations underthis Agreement with respect to the Loan or the Commitment assigned , except that this clause (ii) shall notprohibit any Lender from assigning all or a portion of its rights andobligations among separate Commitments on a non-*pro rata* basis, and (iii)the parties to each assignment shall execute and deliver to the AdministrativeAgent an Assignment and Acceptance, together with a processing andrecordation fee of $1,000, and the Eligible Assignee, if it shall not be aLender, shall deliver to the Administrative Agent an AdministrativeQuestionnaire.  Upon (i) the executionand delivery of the Assignment and Acceptance by the assigning Lender andassignee Lender, (ii) acceptance and recording thereof by the AdministrativeAgent pursuant to paragraph (c) of this Section, (iii) consent thereof from theBorrower to the extent required pursuant to this clause (b) and (iv) if suchassignee Lender is a Foreign Lender, compliance by such Person with Section2.20(e), from and after the effective date specified in each Assignment andAcceptance, the Eligible Assignee thereunder shall be a party hereto and, tothe extent of the interest assigned by such Assignment and Acceptance, have

###  

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###  

### the rights and obligations of a Lender under this Agreement, and theassigning Lender thereunder shall, to the extent of the interest assigned bysuch Assignment and Acceptance, be released from its obligations under thisAgreement (and, in the case of an Assignment and Acceptance covering all of theassigning Lender’s rights and obligations under this Agreement, such Lendershall cease to be a party hereto but shall continue to be entitled to thebenefits of Sections 2.18, 2.19, 2.20 and 10.3.  Any assignment or transfer by a Lender of rights or obligationsunder this Agreement that does not comply with this paragraph shall be treatedfor purposes of this Agreement as a sale by such Lender of a participation insuch rights and obligations in accordance with paragraph (d) of this Section.

###  

### (c)           The Administrative Agent, acting solely forthis purpose as an agent of the Borrower, shall maintain at one of its officesin Atlanta, Georgia a copy of each Assignment and Acceptance delivered to itand a register for the recordation of the names and addresses of the Lenders,and the Commitments of, and principal amount of the Loans owing to, each Lenderpursuant to the terms 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.

###  

### (d)           Any Lender may, without the consent of, ornotice to, the Borrower, the Administrative Agent, the Swingline Bank or theIssuing Bank sell participations to one or more banks or other entities (a“Participant”) in all or a portion of such Lender’s rights and/or obligationsunder this Agreement (including all or a portion of its Commitment and/or theLoans owing to it); provided that (i) such Lender’s obligations under thisAgreement shall remain unchanged, (ii) such Lender shall remain solelyresponsible to the other parties hereto for the performance of such obligationsand (iii) the Borrower, the Administrative Agent, the Swingline Bank, theIssuing Bank and the other Lenders shall continue to deal solely and directlywith such Lender in connection with such Lender’s rights and obligations underthis Agreement.  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 that suchLender will not, without the consent of the Participant, agree to anyamendment, modification or waiver with respect to the following to the extentaffecting such Participant:  (i)increase the Commitment of any Lender without the written consent of suchLender, (ii) reduce the principal amount of any Loan or LC Disbursement orreduce the rate of interest thereon, or reduce any fees payable hereunder,without the written consent of each Lender affected thereby,(iii) postpone the date fixed for any payment of any principal of, orinterest on, any Loan or LC Disbursement or interest thereon or any feeshereunder or reduce the amount of, waive or excuse any such payment, orpostpone the scheduled date for the termination or reduction of any Commitment,without the written consent of each Lender affected thereby, (iv) changeSection 2.21(b) or (c) in a manner that would alter the pro rata sharing ofpayments required thereby, without the written consent of each Lender, (v)change any of the provisions of this Section or the definition of “RequiredLenders” or any other provision hereof specifying the number or percentage ofLenders which are required to waive, amend or modify any rights hereunder ormake any determination or grant any consent

###  

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###  

### hereunder, without the consent of each Lender; (vi) release anyguarantor or limit the liability of any such guarantor under any guarantyagreement without the written consent of each Lender except to the extent suchrelease is expressly provided under the terms of the Guaranty Agreement; or(vii) release all or substantially all collateral (if any) securing any of theObligations.  Subject to paragraph (e)of this Section, the Borrower agrees that each Participant shall be entitled tothe benefits of Sections 2.18, 2.19 and 2.20**to the same extent as if it were a Lenderand had acquired its interest by assignment pursuant to paragraph (b) of thisSection.  To the extent permitted bylaw, each Participant also shall be entitled to the benefits ofSection 10.7**as though it were a Lender, provided such Participantagrees to be subject to Section 10.7**as though it were a Lender.

###  

### (e)           A Participant shall not be entitled toreceive any greater payment under Section 2.18 and Section 2.20**thanthe applicable 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 2.20**unlessthe Borrower is notified of the participation sold to such Participant and suchParticipant agrees, for the benefit of the Borrower, to comply with Section2.20(e)**asthough it were a Lender.

###  

### (f)            Any Lender may at any time pledge or assigna security interest in all or any portion of its rights under this Agreement tosecure obligations of such Lender, including without limitation any pledge orassignment to secure obligations to a Federal Reserve Bank; provided that nosuch pledge or assignment of a security interest shall release a Lender fromany of its obligations hereunder or substitute any such pledgee or assignee forsuch Lender as a party hereto.

###  

## **Section10.5.****       ****GoverningLaw; Jurisdiction; Consent to Service of Process**.

##  

### (a)           This Agreement and the other Loan Documentsshall be construed in accordance with and be governed by the law (withoutgiving effect to the conflict of law principles thereof) of the State of New York.

###  

### (b)           The Borrower hereby irrevocably andunconditionally submits, for itself and its property, to the non-exclusivejurisdiction of the United States District Court of the Northern District ofGeorgia, and of any state court of the State of Georgia located in FultonCounty and any appellate court from any thereof, in any action or proceedingarising out of or relating to this Agreement or any other Loan Document or thetransactions contemplated hereby or thereby, or for recognition or enforcementof any judgment, and each of the parties hereto hereby irrevocably andunconditionally agrees that all claims in respect of any such action orproceeding may be heard and determined in such Georgia state court or, to theextent permitted by applicable law, such Federal court.  Each of the parties hereto agrees that afinal judgment in any such action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law.  Nothing in thisAgreement or any other Loan Document shall affect any right that theAdministrative Agent, the Issuing Bank or

###  

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###  

### any Lender may otherwise have to bring any action or proceedingrelating to this Agreement or any other Loan Document against the Borrower orits properties in the courts of any jurisdiction.

###  

### (c)           The Borrower irrevocably and unconditionallywaives any objection which it may now or hereafter have to the laying ofvenue of any such suit, action or proceeding described in paragraph (b) of thisSection and brought in any court referred to in paragraph (b) of thisSection.  Each of the parties heretoirrevocably waives, to the fullest extent permitted by applicable law, thedefense of an inconvenient forum to the maintenance of such action orproceeding in any such court.

###  

### (d)           Each party to this Agreement irrevocablyconsents to the service of process in the manner provided for notices inSection 10.1.  Nothing in this Agreementor in any other Loan Document will affect the right of any party hereto toserve process in any other manner permitted by law.

###  

## **Section10.6****.****        WAIVER OF JURY TRIAL**.  EACH PARTY HERETO IRREVOCABLY WAIVES, TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BYJURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF 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 PARTY HAS REPRESENTED, EXPRESSLYOR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEKTO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHERPARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHERLOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS INTHIS SECTION.

##  

## **Section10.7****.****        Right of Setoff**.  In addition to any rights now or hereaftergranted under applicable law and not by way of limitation of any such rights,each Lender and the Issuing Bank shall have the right, at any time or from timeto time upon the occurrence and during the continuance of an Event of Default,without prior notice to the Borrower, any such notice being expressly waived bythe Borrower to the extent permitted by applicable law, to set off and applyagainst all deposits (general or special, time or demand, provisional or final)of the Borrower at any time held or other obligations at any time owing by suchLender and the Issuing Bank to or for the credit or the account of the Borroweragainst any and all Obligations held by such Lender or the Issuing Bank, as thecase may be, irrespective of whether such Lender or the Issuing Bank shall havemade demand hereunder and although such Obligations may be unmatured.  Each Lender and the Issuing Bank agreepromptly to notify the Administrative Agent and the Borrower after any suchset-off and any application made by such Lender and the Issuing Bank, as thecase may be; provided, that the failure to give such notice shall notaffect the validity of such set-off and application.

##  

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## **Section10.8****.****        Counterparts;Integration**.  This Agreement maybe executed by one or more of the parties to this Agreement on any number ofseparate counterparts (including by telecopy), and all of said counterpartstaken together shall be deemed to constitute one and the same instrument.  This Agreement, the Fee Letter, the otherLoan Documents, and any separate letter agreement(s) relating to any feespayable to the Administrative Agent constitute the entire agreement among theparties hereto and thereto regarding the subject matters hereof and thereof andsupersede all prior agreements and understandings, oral or written, regardingsuch subject matters.

##  

## **Section10.9****.****        Survival**.  All covenants, agreements, representationsand warranties made by the Borrower herein and in the certificates or otherinstruments delivered in connection with or pursuant to this Agreement shall beconsidered to have been relied upon by the other parties hereto and shallsurvive the execution and delivery of this Agreement and the making of anyLoans and issuance of any Letters of Credit, regardless of any investigationmade by any such other party or on its behalf and notwithstanding that theAdministrative Agent, the Issuing Bank or any Lender may have had notice orknowledge of any Default or incorrect representation or warranty at the timeany credit is extended hereunder, and shall continue in full force and effectas long as the principal of or any accrued interest on any Loan or any fee orany other amount payable under this Agreement is outstanding and unpaid or anyLetter of Credit is outstanding and so long as the Commitments have not expiredor terminated.  The provisions of Sections2.18, 2.19, 2.20 and 10.3 and Article 9 shall surviveand remain in full force and effect regardless of the consummation of thetransactions contemplated hereby, the repayment of the Loans, the expiration ortermination of the Letters of Credit and the Commitments or the termination ofthis Agreement or any provision hereof. All representations and warranties made herein, in the certificates,reports, notices, and other documents delivered pursuant to this Agreementshall survive the execution and delivery of this Agreement and the other LoanDocuments, and the making of the Loans and the issuance of the Letters of Credit.

##  

## **Section10.10.****      Severability**.  Any provision of this Agreement or any otherLoan Document held to be illegal, invalid or unenforceable in any jurisdiction,shall, as to such jurisdiction, be ineffective to the extent of suchillegality, invalidity or unenforceability without affecting the legality,validity or enforceability of the remaining provisions hereof or thereof; andthe illegality, invalidity or unenforceability of a particular provision in aparticular jurisdiction shall not invalidate or render unenforceable suchprovision in any other jurisdiction.

##  

## **Section10.11.****      Confidentiality**.  Each of the Administrative Agent, theIssuing Bank and each Lender agrees to take normal and reasonable precautionsto maintain the confidentiality of any information designated in writing asconfidential and provided to it by the Borrower or any Subsidiary, except thatsuch information may be disclosed (i) to any Related Party of theAdministrative Agent, the Issuing Bank or any such Lender, including withoutlimitation accountants, legal counsel and other advisors, (ii) to the extentrequired by applicable laws or regulations or by any subpoena or similar legalprocess, (iii) to the extent requested by any regulatory agency or authority,(iv) to the extent that such information becomes publicly available other thanas a result of a breach of this Section, or which becomes available to theAdministrative Agent, the Issuing Bank, any Lender or any Related Party of anyof the foregoing

##  

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## on a non-confidential basis from a source other than the Borrower, (v)in connection with the exercise of any remedy hereunder or any suit, action orproceeding relating to this Agreement or the enforcement of rights hereunder,and (ix) subject to provisions substantially similar to this Section 10.11,to any actual or prospective assignee or Participant, or (vi) with the consentof the Borrower.  Any Person required tomaintain the confidentiality of any information as provided for in this Sectionshall be considered to have complied with its obligation to do so if suchPerson has exercised the same degree of care to maintain the confidentiality ofsuch information as such Person would accord its own confidential information.

##  

## **Section10.12****.****      Interest Rate Limitation**.  Notwithstanding anything herein to thecontrary, if at any time the interest rate applicable to any Loan, togetherwith all fees, charges and other amounts which may be treated as interest onsuch Loan under applicable law (collectively, the “Charges”), shallexceed the maximum lawful rate of interest (the “Maximum Rate”) whichmay be contracted for, charged, taken, received or reserved by a Lender holdingsuch Loan in accordance with applicable law, the rate of interest payable inrespect of such Loan hereunder, together with all Charges payable in respectthereof, shall be limited to the Maximum Rate and, to the extent lawful, theinterest and Charges that would have been payable in respect of such Loan butwere not payable as a result of the operation of this Section shall becumulated and the interest and Charges payable to such Lender in respect ofother Loans or periods shall be increased (but not above the Maximum Ratetherefor) until such cumulated amount, together with interest thereon at theFederal Funds Rate to the date of repayment, shall have been received by suchLender.

##  

## **Section10.13****.****      Waiver of Effect ofCorporate Seal**.  TheBorrower represents and warrants that neither it nor any other Loan Party isrequired to affix its corporate seal to this Agreement or any other LoanDocument pursuant to any requirement of law or regulation, agrees that thisAgreement is delivered by Borrower under seal and waives any shortening of thestatute of limitations that may result from not affixing the corporate seal tothis Agreement or such other Loan Documents.

##  

*(remainder of pageleft intentionally blank)*

 

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

 
|   | **WATSON WYATT & COMPANY**                                                       |
|--------|--------------------------------------------------------------------------------------|
|   |                                                                                 |
|   |                                                                                 |
|   | By:                                                                                  |   |   |
|   |                                                                                 | Michael J.  O’Boyle |
|   |                                                                                 | Treasurer |
|   |                                                                                 |
|   |                                                                                 |
|   | **SUNTRUST BANK**                                                                    |
|   | **as Administrative Agent, as Issuing Bank,  as   Swingline Lender and as a Lender** |
|   |                                                                                 |
|   |                                                                                 |
|   | By:                                                                                  |   |   |
|   |                                                                                 | Name: |
|   |                                                                                 | Title: |
|   |                                                                                 |
|   | Revolving  Commitment: $20,000,000                                                   |
|   |                                                                                 |
|   | LC  Commitment:                                                                      |
|   |                                                                                 |
|   | Swingline  Commitment:                                                               |
|        |                                                                                      |  |  |  |  |  |

 

----

 
|   | **COMERICA BANK**                  |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                |   |   |
|   |                               | Name: |   |
|   |                               | Title:   |   |
|   |                               |
|   |                               |
|   | Revolving  Commitment: $10,000,000 |
|        |                                    |  |  |  |

 

2

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|   | **MANUFACTURERS AND TRADERS TRUST   COMPANY** |
|--------|-----------------------------------------------|
|   |                                          |
|   |                                          |
|   | By:                                           |   |   |
|   |                                          | Name: |   |
|   |                                          | Title:   |   |
|   |                                          |
|   |                                          |
|   | Revolving  Commitment: $10,000,000            |
|        |                                               |  |  |  |

 

3

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|   | **US BANK NATIONAL ASSOCIATION**   |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                |   |   |
|   |                               | Name:  |   |
|   |                               | Title:     |   |
|   |                               |
|   |                               |
|   | Revolving  Commitment: $10,000,000 |
|        |                                    |  |  |  |

 

4

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**Schedule I**

 

**APPLICABLE MARGIN ANDAPPLICABLE PERCENTAGE**

 

 
| **Pricing** |   | **Total  Debt/**            |       | **Applicable  Percentage** |   |          |   |                |   |
|-------------|--------|-----------------------------|------------|----------------------------|--------|---------------|--------|---------------------|--------|
| **Level**   |   | **EBITDA**                  |       | **LIBOR**                  |   | **Base Rate** |   | **Commitment  Fee** |   | **LOC Fee** |   |
| I           |   | >1.5:1.0                 |       | 1.75                       | %      | 0.25          | %      | 0.35                | %      | 1.75 | % |
| II          |   | <1.5:1.0 but >1.0:1.0 |       | 1.50                       | %      | 0.00          | %      | 0.30                | %      | 1.50 | % |
| III         |   | <1.0:1.0 but >0.5:1.0 |       | 1.25                       | %      | 0.00          | %      | 0.25                | %      | 1.25 | % |
| **IV**      |   | **<0.5:1.0**             | ** ** | **1.00**                   | **%**  | **0.00**      | **%**  | **0.20**            | **%**  | **1.00** | **%** |

 

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**SCHEDULE 4.5**

 

**ENVIRONMENTAL MATTERS**

 

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**SCHEDULE 4.14**

 

**SUBSIDIARIES**

 

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**SCHEDULE 7.1**

 

**OUTSTANDINGINDEBTEDNESS**

 

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**SCHEDULE 7.2**

 

**EXISTING LIENS**

 

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**SCHEDULE 7.4**

 

**EXISTING INVESTMENTS**

 

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