exv10w1



 






Exhibit 10.1










AMENDED AND RESTATED CREDIT AGREEMENT




Dated as of December 29, 2004




among




ORBITAL SCIENCES CORPORATION,

as the Borrower,




THE SUBSIDIARIES OF THE BORROWER IDENTIFIED HEREIN,

as the Guarantors,




BANK OF AMERICA, N.A.,

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




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Documentation Agent




and




The Other Lenders Party Hereto




Arranged By:




BANC OF AMERICA SECURITIES LLC,

as Sole Lead Arranger and Sole Book Manager










 









 







TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE I DEFINITIONS AND ACCOUNTING TERMS	 	 	1	 
	 
	 	1.01 Defined Terms	 	 	1	 
	 
	 	1.02 Other Interpretive Provisions	 	 	21	 
	 
	 	1.03 Accounting Terms	 	 	21	 
	 
	 	1.04 Rounding	 	 	22	 
	 
	 	1.05 References to Agreements and Laws	 	 	22	 
	 
	 	1.06 Times of Day	 	 	22	 
	 
	 	1.07 Letter of Credit Amounts	 	 	22	 
	ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS	 	 	23	 
	 
	 	2.01 Revolving Loans	 	 	23	 
	 
	 	2.02 Borrowings, Conversions and Continuations of Loans	 	 	23	 
	 
	 	2.03 Letters of Credit	 	 	25	 
	 
	 	2.04 Swing Line Loans	 	 	32	 
	 
	 	2.05 Prepayments	 	 	34	 
	 
	 	2.06 Termination or Reduction of Aggregate Revolving Commitments	 	 	35	 
	 
	 	2.07 Repayment of Loans	 	 	35	 
	 
	 	2.08 Interest	 	 	35	 
	 
	 	2.09 Fees	 	 	36	 
	 
	 	2.10 Computation of Interest and Fees	 	 	36	 
	 
	 	2.11 Evidence of Debt	 	 	37	 
	 
	 	2.12 Payments Generally	 	 	37	 
	 
	 	2.13 Sharing of Payments	 	 	39	 
	ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY	 	 	39	 
	 
	 	3.01 Taxes	 	 	39	 
	 
	 	3.02 Illegality	 	 	41	 
	 
	 	3.03 Inability to Determine Rates	 	 	41	 
	 
	 	3.04 Increased Cost and Reduced Return; Capital Adequacy	 	 	41	 
	 
	 	3.05 Funding Losses	 	 	42	 
	 
	 	3.06 Matters Applicable to all Requests for Compensation	 	 	42	 
	 
	 	3.07 Survival	 	 	42	 
	ARTICLE IV GUARANTY	 	 	43	 
	 
	 	4.01 The Guaranty	 	 	43	 
	 
	 	4.02 Obligations Unconditional	 	 	43	 
	 
	 	4.03 Reinstatement	 	 	44	 
	 
	 	4.04 Certain Additional Waivers	 	 	44	 
	 
	 	4.05 Remedies	 	 	44	 
	 
	 	4.06 Rights of Contribution	 	 	45	 
	 
	 	4.07 Guarantee of Payment; Continuing Guarantee	 	 	45	 
	ARTICLE V CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	 	 	46	 
	 
	 	5.01 Conditions of Initial Credit Extension	 	 	46	 
	 
	 	5.02 Conditions to all Credit Extensions	 	 	47	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES	 	 	48	 
	 
	 	6.01 Existence, Qualification and Power	 	 	48	 
	 
	 	6.02 Authorization; No Contravention	 	 	48	 






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	 	6.03 Governmental Authorization; Other Consents	 	 	48	 
	 
	 	6.04 Binding Effect	 	 	49	 
	 
	 	6.05 Financial Statements; No Material Adverse Effect	 	 	49	 
	 
	 	6.06 Litigation	 	 	50	 
	 
	 	6.07 No Default	 	 	50	 
	 
	 	6.08 Ownership of Property; Liens	 	 	50	 
	 
	 	6.09 Environmental Compliance	 	 	50	 
	 
	 	6.10 Insurance	 	 	51	 
	 
	 	6.11 Taxes	 	 	51	 
	 
	 	6.12 ERISA Compliance	 	 	51	 
	 
	 	6.13 Subsidiaries	 	 	52	 
	 
	 	6.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act	 	 	52	 
	 
	 	6.15 Disclosure	 	 	52	 
	 
	 	6.16 Compliance with Laws	 	 	52	 
	 
	 	6.17 Intellectual Property;
Licenses, Etc.	 	 	53	 
	 
	 	6.18 Effectiveness of Security Interests in the Collateral	 	 	53	 
	 
	 	6.19 Legal Name; State of Formation	 	 	53	 
	 
	 	6.20 Labor Matters	 	 	53	 
	ARTICLE VII AFFIRMATIVE COVENANTS	 	 	53	 
	 
	 	7.01 Financial Statements	 	 	54	 
	 
	 	7.02 Certificates; Other Information	 	 	54	 
	 
	 	7.03 Notices	 	 	56	 
	 
	 	7.04 Payment of Obligations	 	 	56	 
	 
	 	7.05 Preservation of Existence, Etc.	 	 	56	 
	 
	 	7.06 Maintenance of Properties	 	 	56	 
	 
	 	7.07 Maintenance of Insurance	 	 	56	 
	 
	 	7.08 Compliance with Laws	 	 	57	 
	 
	 	7.09 Books and Records	 	 	57	 
	 
	 	7.10 Inspection Rights; Field Audits	 	 	57	 
	 
	 	7.11 Use of Proceeds	 	 	57	 
	 
	 	7.12 Subsidiaries	 	 	57	 
	 
	 	7.13 ERISA Compliance	 	 	58	 
	ARTICLE VIII NEGATIVE COVENANTS	 	 	58	 
	 
	 	8.01 Liens	 	 	58	 
	 
	 	8.02 Investments	 	 	60	 
	 
	 	8.03 Indebtedness	 	 	61	 
	 
	 	8.04 Fundamental Changes	 	 	63	 
	 
	 	8.05 Dispositions	 	 	63	 
	 
	 	8.06 Restricted Payments	 	 	63	 
	 
	 	8.07 Change in Nature of Business	 	 	64	 
	 
	 	8.08 Transactions with Affiliates and Insiders	 	 	64	 
	 
	 	8.09 Burdensome Agreements	 	 	64	 
	 
	 	8.10 Use of Proceeds	 	 	64	 
	 
	 	8.11 Financial Covenants	 	 	65	 
	 
	 	8.12 Senior Note Documents; Repurchase of Senior Notes	 	 	65	 






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	 	8.13 Organization Documents; Fiscal Year; Legal Name, State of Formation and Form of Entity; Chief Executive Office	 	 	66	 
	 
	 	8.14 Ownership of Subsidiaries	 	 	66	 
	 
	 	8.15 Sale and Leaseback Transactions	 	 	66	 
	ARTICLE IX EVENTS OF DEFAULT AND REMEDIES	 	 	66	 
	 
	 	9.01 Events of Default	 	 	66	 
	 
	 	9.02 Remedies Upon Event of Default	 	 	68	 
	 
	 	9.03 Application of Funds	 	 	69	 
	ARTICLE X ADMINISTRATIVE AGENT	 	 	70	 
	 
	 	10.01 Appointment and Authorization of Administrative Agent	 	 	70	 
	 
	 	10.02 Delegation of Duties	 	 	70	 
	 
	 	10.03 Liability of Administrative Agent	 	 	71	 
	 
	 	10.04 Reliance by Administrative Agent	 	 	71	 
	 
	 	10.05 Notice of Default	 	 	71	 
	 
	 	10.06 Credit Decision; Disclosure of Information by Administrative Agent	 	 	72	 
	 
	 	10.07 Indemnification of Administrative Agent	 	 	72	 
	 
	 	10.08 Administrative Agent in its Individual Capacity	 	 	73	 
	 
	 	10.09 Successor Administrative Agent	 	 	73	 
	 
	 	10.10 Administrative Agent May File Proofs of Claim	 	 	73	 
	 
	 	10.11 Collateral and Guaranty Matters	 	 	74	 
	 
	 	10.12 Other Agents; Arrangers and Managers	 	 	75	 
	ARTICLE XI MISCELLANEOUS	 	 	75	 
	 
	 	11.01 Amendments, Etc	 	 	75	 
	 
	 	11.02 Notices and Other Communications; Facsimile Copies	 	 	76	 
	 
	 	11.03 No Waiver; Cumulative Remedies	 	 	77	 
	 
	 	11.04 Attorney Costs, Expenses and Taxes	 	 	77	 
	 
	 	11.05 Indemnification by the Borrower	 	 	78	 
	 
	 	11.06 Payments Set Aside	 	 	79	 
	 
	 	11.07 Successors and Assigns	 	 	79	 
	 
	 	11.08 Confidentiality	 	 	81	 
	 
	 	11.09 Set-off	 	 	82	 
	 
	 	11.10 Interest Rate Limitation	 	 	82	 
	 
	 	11.11 Counterparts	 	 	82	 
	 
	 	11.12 Integration	 	 	82	 
	 
	 	11.13 Survival of Representations and Warranties	 	 	83	 
	 
	 	11.14 Severability	 	 	83	 
	 
	 	11.15 Tax Forms	 	 	83	 
	 
	 	11.16 Replacement of Lenders	 	 	85	 
	 
	 	11.17 Release of Collateral and Guarantees	 	 	85	 
	 
	 	11.18 Governing Law	 	 	85	 
	 
	 	11.19 Waiver of Right to Trial by Jury	 	 	86	 






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	SCHEDULES	 	 
	 
	 	 	 	 
	 
	 	S-1	 	Subject Property
	 
	 	2.01	 	Commitments and Pro Rata Shares
	 
	 	2.03	 	Existing Letters of Credit
	 
	 	6.13	 	Subsidiaries
	 
	 	6.17	 	IP Rights
	 
	 	6.19	 	Changes in Legal Name, State of Formation and Structure
	 
	 	8.01	 	Liens Existing on the Closing Date
	 
	 	8.02	 	Investments Existing on the Closing Date
	 
	 	8.03	 	Indebtedness Existing on the Closing Date
	 
	 	8.15	 	Sale and Leaseback Transactions Existing on the Closing Date
	 
	 	11.02	 	Certain Addresses for Notices
	 
	 	 	 	 
	EXHIBITS	 	 
	 
	 	 	 	 
	 
	 	A	 	Form of Loan Notice
	 
	 	B	 	Form of Swing Line Loan Notice
	 
	 	C-1	 	Form of Revolving Note
	 
	 	C-2	 	Form of Swing Line Note
	 
	 	D	 	Form of Compliance Certificate
	 
	 	E	 	Form of Assignment and Assumption
	 
	 	F	 	Form of Joinder Agreement







iv









 








AMENDED AND RESTATED CREDIT AGREEMENT




     This AMENDED AND RESTATED CREDIT AGREEMENT (the “Agreement”) is entered into as of
December 29, 2004 among ORBITAL SCIENCES CORPORATION, a Delaware
corporation (the
“Borrower”), the Guarantors (defined herein), the Lenders (defined herein), and BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



     WHEREAS, the Borrower has requested that the Lenders provide a $50,000,000 revolving credit
facility for the purposes set forth herein, and the Lenders are willing to do so on the terms and
conditions set forth herein; and



     WHEREAS, this Credit Agreement is given in amendment to, restatement of and substitution for
the Credit Agreement dated as of July 10, 2003 among the Borrower, the Guarantors, the lenders
identified therein and Bank of America, as administrative agent.



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



ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




     1.01 Defined Terms.



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



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



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



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



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



     “Affiliate” means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified. “Control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto. Without limiting the generality of the
foregoing, a Person shall be deemed to be Controlled by another Person if such other Person
possesses, directly or indirectly, power to vote 10% or more of the securities having ordinary
voting power for the election of directors, managing general partners or the equivalent.



 









 





     “Aggregate Revolving Commitments” means the Revolving Commitments of all the Lenders.
The initial amount of the Aggregate Revolving Commitments in effect on the Closing Date is FIFTY
MILLION DOLLARS ($50,000,000).



     “Agreement” means this Amended and Restated Credit Agreement, as amended, modified,
supplemented and extended from time to time.



     “Applicable Rate” means the following percentages per annum, based upon the
Consolidated Total Leverage Ratio as set forth in the most recent Compliance Certificate received
by the Administrative Agent pursuant to Section 7.02(a):



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	Pricing	 	 	Consolidated Total	 	 	 	 	 	Letters of Credit and	 	 	 	 
	 	 Tier	 	 	Leverage Ratio	 	 	Commitment Fee	 	 	Eurodollar Loans	 	 	Base Rate Loans	 
	 	1
	 	 	>2.75:1.0	 	 	0.50%	 	 	2.25%	 	 	0.75%	 
	 	2
	 	 	£2.75:1.0 but >2.25	 	 	0.50%	 	 	2.00%	 	 	0.50%	 
	 	3
	 	 	£2.25:1.0 but >1.75	 	 	0.50%	 	 	1.75%	 	 	0.25%	 
	 	4
	 	 	£ 1.75:1.0	 	 	0.50%	 	 	1.50%	 	 	0.00%	 
	 





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Total
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate (together with the related financial statements required by Section
7.01(a) or Section 7.01(b), as applicable) is delivered pursuant to Section
7.02(a); provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then Pricing Tier 1 shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have been delivered and
shall continue to apply until the first Business Day immediately following the date such Compliance
Certificate (together with the related financial statements required by Section 7.01(a) or
Section 7.01(b), as applicable) is actually delivered. The Applicable Rate in effect from
the Closing Date through the first Business Day immediately following the date a Compliance
Certificate (together with the related financial statements required by Section 7.01(a) or
Section 7.01(b), as applicable) is delivered pursuant to Section 7.02(a) for the
fiscal year ending December 31, 2004 shall be determined based upon Pricing Tier 3.




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



     “Assignment and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit E.



     “Attorney Costs” means and includes all reasonable fees, expenses and disbursements of
any law firm or other external counsel.



     “Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were
accounted for as a capital lease, and (c) in respect of any Securitization Transaction of any
Person, the outstanding principal amount of such
financing, after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment.



2









 





     “Audited Financial Statements” means the audited consolidated and consolidating balance
sheets of the Borrower and its Subsidiaries for the fiscal years ended December 31, 2001, December
31, 2002 and December 31, 2003, and the related consolidated and consolidating statements of income
or operations, shareholders’ equity and cash flows for such fiscal years of the Borrower and its
Subsidiaries, including the notes thereto.



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



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



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



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



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



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



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



     “Capital Stock” means (i) in the case of a corporation, capital stock, (ii) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (iii) in the case of a partnership,
partnership interests (whether general or limited), (iv) in the case of a limited liability
company, membership interests and (v) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.



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



3









 





     “Cash Equivalents” means, as at any date, (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is pledged in support
thereof) and securities issued by any state of the United States of America or any political
subdivision thereof having the highest rating obtainable from either Moody’s or S&P, in each case
maturing or having an auction date within one year after the date of acquisition, (b) time
deposits, certificates of deposit, bankers’ acceptances and commercial paper issued by the parent
corporation of any domestic commercial bank of recognized standing having capital and surplus in
excess of $500 million, in each case maturing within one year after the date of acquisition, (c)
commercial paper issued by others rated at least A-2 or the equivalent thereof by S&P or at least
P-2 or the equivalent thereof by Moody’s, in each case maturing or having an auction date within
one year after the date of acquisition, (d) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in (a) and (b) above entered into with
any financial institution meeting the qualifications specified in (b) above, (e) investment or
money market funds, substantially all of the assets of which constitute Cash Equivalents of the
kinds described in (a) through (d) of this definition, (f) Investments, classified in accordance
with GAAP as current assets, in money market mutual funds (as defined by Rule 2(a)-7 of the
Investment Company Act of 1940) registered under the Investment Company Act of 1940, as amended,
which are administered by reputable financial institutions having capital of at least $500,000,000
and which have a credit rating of A-1 or higher by S&P, or an equivalent credit rating by Moody’s
or Fitch Ratings Services and (g) auction rate securities having an auction date within one year
after the date of acquisition which have a long term credit rating A or higher by S&P, or an
equivalent credit rating by Moody’s or Fitch Ratings Services.



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




     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all Capital Stock that such person
or group has the right to acquire (such right, an “option right”), whether such right
is exercisable immediately or only after the passage of time), directly or indirectly, of
thirty percent (30%) of the Capital Stock of the Borrower entitled to vote for members of
the board of directors or equivalent governing body of the Borrower on a fully diluted basis
(and taking into account all such securities that such person or group has the right to
acquire pursuant to any option right); or




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



4









 






     (c) the occurrence of a “Change of Control” under, and as defined in, the Senior Note
Indenture.



     “Closing Date” means the date hereof.



     “Closing Date Projections” has the meaning specified in Section 5.01(e).



     “Collateral” means a collective reference to all real and personal Property with
respect to which Liens in favor of the Administrative Agent are purported to be granted pursuant to
and in accordance with the terms of the Collateral Documents.



     “Collateral Documents” means a collective reference to the Security Agreement, the
Pledge Agreement and such other security documents as may be executed and delivered by the Loan
Parties.



     “Commitment Fee” has the meaning specified in Section 2.09(a).



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



     “Consolidated Adjusted EBITDA” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated EBITDA for
such period minus (b) Consolidated Cash Taxes for such period minus (c) Consolidated
Capital Expenditures for such period, all as determined in accordance with GAAP; provided that if
as of the last day of such period the Net Cash Position exceeds $50 million, then for purposes of
calculating Consolidated Adjusted EBITDA for the period of four fiscal quarters ended as of the end
of such fiscal quarter, Consolidated Capital Expenditures for such period shall be deemed to be $0.



     “Consolidated Asset Coverage Ratio” means, as of any date of determination, the ratio
of (a) all accounts receivable of the Borrower and its Subsidiaries as of such date to (b) the sum
of (i) Consolidated Secured Funded Indebtedness as of such date minus (ii) to the extent
deemed Consolidated Secured Funded Indebtedness, the outstanding amount of letters of credit as of
such date to the extent secured by cash collateral.



     “Consolidated Capital Expenditures” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, all capital expenditures, as determined in accordance with
GAAP; provided, however, that Consolidated Capital Expenditures shall not include (a)
expenditures made with proceeds of any Involuntary Disposition to the extent such expenditures are
used to purchase Property that is the same as or similar to the Property subject to such
Involuntary Disposition or (b) Permitted Acquisitions.



     “Consolidated Cash Taxes” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the aggregate of all income taxes, as determined in accordance with GAAP,
to the extent the same are paid in cash during such period.



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



     “Consolidated Fixed Charges” means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a) Consolidated Interest
Charges for such period plus



5









 





(b) Consolidated Scheduled Funded Debt Payments for such period
plus (c) all Restricted Payments (it being understood that Investments pursuant to
Section 8.02(p) shall not constitute Restricted Payments for purposes of this clause (c))
made by the Borrower during such period (other than Restricted Payments for the repurchase of
warrants for the Capital Stock of the Borrower that are made in an amount not exceeding the
proceeds received by Borrower from the exercise of warrants for the Capital Stock of the Borrower),
all as determined in accordance with GAAP; provided that if as of the last day of such period the
Net Cash Position exceeds $50 million, then for purposes of calculating Consolidated Fixed Charges
for the period of four fiscal quarters ended as of the end of such fiscal quarter, Restricted
Payments for such period shall be deemed to be $0.




     “Consolidated Fixed Charges Coverage Ratio” means, as of any date of determination, the
ratio of (i) Consolidated Adjusted EBITDA for the period of the four fiscal quarters most recently
ended to (ii) Consolidated Fixed Charges for the period of the four fiscal quarters most recently
ended.



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



     “Consolidated Interest Charges” means, for any period for the Borrower and its
Subsidiaries on a consolidated basis, all interest expense of the Borrower and its Subsidiaries for
such period determined in accordance with GAAP (including, without limitation, the portion of rent
expense of the Borrower and its Subsidiaries with respect to such period under capital leases that
is treated as interest in accordance with GAAP).



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



     “Consolidated Net Worth” means, as of any date of determination, consolidated
shareholders’ equity of the Borrower and its Subsidiaries as of such date determined in accordance
with GAAP.



     “Consolidated Rental Expense” means for any period for the Borrower and its
Subsidiaries on a consolidated basis, rental expense under operating leases for such period as
determined in accordance with GAAP.



     “Consolidated Scheduled Funded Debt Payments” means for any period for the Borrower and
its Subsidiaries on a consolidated basis, the sum of all scheduled payments of principal on
Consolidated Funded Indebtedness, as determined in accordance with GAAP. For purposes of this
definition, “scheduled payments of principal” (a) shall be determined without giving effect to any
reduction of such scheduled payments resulting from the application of any voluntary or mandatory
prepayments made during the applicable period (but giving effect to reductions from the application
of prepayments made during any period prior to the applicable period), (b) shall be deemed to
include the Attributable Indebtedness in respect of capital leases and Synthetic Leases and (c)
shall not include any voluntary prepayments or mandatory prepayments required pursuant to
Section 2.05.



     “Consolidated Secured Funded Indebtedness” means Consolidated Funded Indebtedness that
is secured by a Lien on any Property of the Borrower or any Subsidiary.



     “Consolidated Secured Leverage Ratio” means, as of any date of determination, the ratio
of (a) the sum of (i) Consolidated Secured Funded Indebtedness as of such date less (ii) the
outstanding amount of letters of credit as of such date to the extent secured by cash collateral to
(b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.



6









 





     “Consolidated Total Leverage Ratio” means, as of any date of determination, the ratio
of (a) the sum of (i) Consolidated Funded Indebtedness as of such date less (ii) the
outstanding amount of letters of credit as of such date to the extent secured by cash collateral
less (iii) solely for purposes of determining compliance with Section 8.11(a), the amount of
Unrestricted Cash in excess of $50 million (it being understood that this clause (iii) shall not be
applicable in the calculation of the Consolidated Total Leverage Ratio for purposes of determining
the Applicable Margin) to (b) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended.



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



     “Control” has the meaning specified in the definition of “Affiliate.”




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



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



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



     “Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the
Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum;
provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise
applicable to such Loan plus 2% per annum, in each case to the fullest extent permitted by
applicable Laws.



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



     “Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any Sale and Leaseback Transaction) of any Property by the Borrower or any
Subsidiary (including the Capital Stock of any Subsidiary), including any sale, assignment,
transfer or other disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith, but excluding (i) the sale, lease, license, transfer or
other disposition of inventory in
the ordinary course of business of the Borrower and its Subsidiaries, (ii) the sale, lease,
license, transfer or other disposition of personal property (including, without limitation,
intellectual property) no longer used in the conduct of business of the Borrower and its
Subsidiaries, (iii) any sale, lease, license, transfer or other disposition of Property by the
Borrower or any Subsidiary to any Loan Party, (iv) any Involuntary Disposition by the Borrower or
any Subsidiary, (v) any sale, lease, license, transfer or other disposition of Property by any
Foreign Subsidiary to another Foreign Subsidiary, (vi) the sale of the Borrower’s Transportation
Management Systems division, (vii) the license by the Borrower or any Subsidiary, on a
non-exclusive basis, of IP Rights in the ordinary course of business, (viii) the surrender or
waiver of contract rights in



7










 





the ordinary course of business, (ix) the settlement, release or
surrender of tort or other litigation (or potential litigation) claims in the ordinary course of
business and (x) the grant of Permitted Liens or the making of Permitted Investments.




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



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



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



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



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



     “Equity Issuance” means any issuance by the Borrower to any Person of shares of its
Capital Stock, other than (a) any issuance of shares of its Capital Stock pursuant to the exercise
of options or warrants, (b) any issuance of shares of its Capital Stock pursuant to the conversion
of any debt securities to equity or the conversion of any class of equity securities to any other
class of equity securities, (c) any issuance by the Borrower of shares of its Capital Stock as
consideration for a Permitted Acquisition and (d) any stock grant to an employee of the Borrower or
any Subsidiary under a stock option plan (including, without limitation, any 401(k) plan, employee
stock option plan or executive compensation plan) of the Borrower.



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



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



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



8









 





commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower
or any ERISA Affiliate.




     “Eurodollar Base Rate” means, for any Interest Period with respect to any Eurodollar
Rate Loan:




     (a) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the Telerate screen (or any successor thereto)
that displays an average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or




     (b) if the rate referenced in the preceding clause (a) does not appear on such page or
service or such page or service shall not be available, the rate per annum equal to the rate
determined by the Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest Settlement Rate for
deposits in Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or




     (c) if the rates referenced in the preceding clauses (a) and (b) are not available, the
rate per annum (rounded upward to the next 1/100th of 1%) determined by the
Administrative Agent as the rate of interest at which deposits in Dollars for delivery on
the first day of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London Branch to
major banks in the London interbank eurodollar market at their request at approximately 4:00
p.m. (London time) two Business Days prior to the first day of such Interest Period.



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



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



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



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



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



9









 





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



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



     “Fee Letter” means the letter agreement dated November 23, 2004 among the Borrower, the
Administrative Agent and the Arranger.



     “Foreign Lender” has the meaning specified in Section 11.15(a)(i).



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



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



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



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




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




     (b) all purchase money Indebtedness;




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




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




     (e) all obligations in respect of the deferred purchase price of Property or services
(other than trade accounts payable in the ordinary course of business);




     (f) all Attributable Indebtedness;




     (g) all preferred stock or other equity interests providing for mandatory redemptions,
sinking fund or like payments prior to the Maturity Date;



10









 






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




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




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




For purposes hereof, the amount of any obligation arising under letters of credit, bankers’
acceptances, bank guaranties and similar instruments shall be the maximum amount available
to be drawn thereunder on the date of determination. Notwithstanding anything herein to the
contrary, “Funded Indebtedness” shall not include obligations under surety bonds.



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



     “Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining to government.



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease Property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such
Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in good faith (the “Guarantee
Amount”), provided that with respect to any Guarantee under clause (b), if such Person
has not assumed the applicable Indebtedness or obligation, then the amount of such Guarantee shall
be the lesser of the Guarantee Amount and the fair market value of the assets subject to the
applicable Lien. The term “Guarantee” as a verb has a corresponding meaning.



11









 





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



     “Guarantors” means each Person that joins as a Guarantor pursuant to Section
7.12, together with their successors and permitted assigns.



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



     “Immaterial Domestic Subsidiary” means (a) the Non-Guarantor Subsidiary unless and
until either (i) the revenue of the Non-Guarantor Subsidiary exceeds one percent (1%) of the
revenue of the Borrower and its Subsidiaries on a consolidated basis determined in accordance with
GAAP or (ii) the book value of the assets of the Non-Guarantor Subsidiary exceeds one percent (1%)
of the book value of the assets of the Borrower and its Subsidiaries on a consolidated basis
determined in accordance with GAAP and (b) any other Domestic Subsidiary unless and until (i) the
revenue of such Domestic Subsidiary exceeds 1% of the revenue of the Borrower and its Subsidiaries
on a consolidated basis determined in accordance with GAAP or (ii) the book value of the assets of
such Domestic Subsidiary exceeds 1% of the book value of the assets of the Borrower and its
Subsidiaries on a consolidated basis determined in accordance with GAAP.



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




     (a) all Funded Indebtedness;




     (b) all obligations under surety bonds; and




     (c) net obligations under any Swap Contract.




For purposes hereof the amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such date.



     “Indemnified Liabilities” has the meaning set forth in Section 11.05.



     “Indemnitees” has the meaning set forth in Section 11.05.



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



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



12









 






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




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




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



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time
to time.



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



     “Involuntary Disposition” means any material loss of, damage to or destruction of, or
any condemnation or other taking for public use of, any material Property of the Borrower or any
Subsidiary.



     “IP Rights” has the meaning set forth in Section 6.17.



     “IRS” means the United States Internal Revenue Service.



     “ISP” has the meaning set forth in Section 2.03(h).



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



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



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



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



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



13









 





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



     “L/C Issuer Policies” has the meaning assigned to such term in Section
2.03(a)(ii)(B).



     “L/C Obligations” means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts,
including all L/C Borrowings.



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



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



     “Letter of Credit” means any standby letter of credit issued under this Agreement.



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



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



     “Letter of Credit Sublimit” means, at any time, an amount equal to the sum of the
Aggregate Revolving Commitments less $10,000,000. The Letter of Credit Sublimit is part of,
and not in addition to, the Aggregate Revolving Commitments.



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



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



     “Loan Documents” means this Agreement, each Note, each Letter of Credit, each Letter of
Credit Application, each Joinder Agreement, the Collateral Documents, each Request for Credit
Extension, each Compliance Certificate, the Fee Letter and each other document, instrument or
agreement from time to time executed by the Borrower or any Subsidiary or any Responsible Officer
thereof and delivered in connection with this Agreement.



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



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




14










 






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



     “Material Domestic Subsidiary” means any Domestic Subsidiary other than an Immaterial
Domestic Subsidiary.



     “Maturity Date” means December 29, 2009.



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



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



     “Net Cash Position” means, as of any date of determination, the sum of (a)
Unrestricted Cash as of such date minus (b) the Outstanding Amount of Loans as of such
date.



     “Non-Guarantor Subsidiary” means Orbital Communications Corporation.



     “Note” or “Notes” means the Revolving Notes and/or the Swing Line Note,
individually or collectively, as appropriate.



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



     “Optus” means Optus Networks Pty. Limited.



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



     “Outstanding Amount” means (i) with respect to any Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of any Loans occurring on such date; and (ii) with respect to any L/C Obligations on any
date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit
Extension



15









 





occurring on such date and any other changes in the aggregate amount of the L/C
Obligations as of such
date, including as a result of any reimbursements of outstanding unpaid drawings under any
Letters of Credit or any reductions in the maximum amount available for drawing under Letters of
Credit taking effect on such date.




     “Participant” has the meaning specified in Section 11.07(d).



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Permitted Acquisitions” means Investments consisting of an Acquisition by the
Borrower or any Subsidiary, provided that (i) the Property acquired (or the Property of the
Person acquired) in such Acquisition is used or useful in a line of business permitted pursuant to
Section 8.07, (ii) in the case of an Acquisition of the Capital Stock of another Person,
the board of directors (or other comparable governing body) of such other Person shall have duly
approved such Acquisition, (iii) the Borrower shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon giving effect to such Acquisition on a
Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b), (iv) the representations
and warranties made by the Loan Parties in any Loan Document shall be true and correct in all
material respects at and as if made as of the date of such Acquisition (after giving effect
thereto) except to the extent such representations and warranties expressly relate to an earlier
date, (v) if such transaction involves the purchase of an interest in a partnership between the
Borrower (or a Subsidiary) as a general partner and entities unaffiliated with the Borrower or such
Subsidiary as the other partners, such transaction shall be effected by having such equity interest
acquired by a corporate holding company directly or indirectly wholly-owned by the Borrower newly
formed for the sole purpose of effecting such transaction, (vi) after giving effect to such
Acquisition, there shall be at least $5,000,000 of availability existing under the Aggregate
Revolving Commitments, (vii) for any single Acquisition, the cash consideration (including the
principal amount of any Indebtedness assumed) shall not exceed $30,000,000 and the Total
Consideration shall not exceed $125,000,000, and (vii) for all Acquisitions, the cash consideration
(including the principal amount of any Indebtedness assumed) shall not exceed $60,000,000 in any
fiscal year of the Borrower and the Total Consideration shall not exceed $175,000,000 in any fiscal
year of the Borrower.



     “Permitted Investments” means, at any time, Investments by the Borrower and its
Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.



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



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



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



16









 





     “Pledge Agreement” means the pledge agreement dated as of the Closing Date executed in
favor of the Administrative Agent by each of the Loan Parties, as amended, modified, restated or
supplemented from time to time.



     “Pro Forma Basis” means that any Disposition, Involuntary Disposition, Restricted
Payment or Acquisition shall be deemed to have occurred as of the first day of the most recent four
fiscal quarter period preceding the date of such transaction for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b). In connection with the
foregoing, (a) with respect to any Disposition or Involuntary Disposition, income statement and
cash flow statement items (whether positive or negative) attributable to the Property disposed of
shall be excluded to the extent relating to any period occurring prior to the date of such
transaction, and (b) with respect to any Acquisition, income statement items attributable to the
Person or Property acquired shall be included to the extent relating to any period applicable in
such calculations to the extent (i) such items are not otherwise included in such income statement
items for the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any
defined terms set forth in Section 1.1 and (ii) such items are supported by financial
statements or other information reasonably satisfactory to the Administrative Agent.



     “Pro Forma Compliance Certificate” means a certificate of a Responsible Officer of the
Borrower containing reasonably detailed calculations of the financial covenants set forth in
Section 8.11 as of the most recent fiscal quarter end for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b) after giving effect to the
applicable transaction on a Pro Forma Basis.



     “Pro Rata Share” means, as to each Lender, a fraction (expressed as a percentage,
carried out to the ninth decimal place), the numerator of which is the amount of the Revolving
Commitment of such Lender at such time and the denominator of which is the amount of the Aggregate
Revolving Commitments at such time; provided that if the commitment of each Lender to make
Revolving Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 9.02, then the Pro Rata Share of each Lender shall be
determined based on the Pro Rata Share of such Lender immediately prior to such termination and
after giving effect to any subsequent assignments made pursuant to the terms hereof. The initial
Pro Rata Share of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable.



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



     “Register” has the meaning set forth in Section 11.07(c).



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



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



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



     “Required Lenders” means, at any time, Lenders holding in the aggregate at least
sixty-six and two thirds percent (66 2/3%) of (a) the Revolving Commitments
or (b) if the Revolving Commitments have been



17









 





terminated, the outstanding Loans, L/C Obligations
and participations therein. The Revolving
Commitments of any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.




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



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other Property) with respect to any Capital Stock of the Borrower or any Subsidiary,
or any payment (whether in cash, securities or other Property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or
termination of any such Capital Stock or of any option, warrant or other right to acquire any such
Capital Stock. The term “Restricted Payment” shall not include (a) Restricted Payments made by any
Subsidiary (directly or indirectly) to any Loan Party and (b) dividend payments and other
distributions to the extent payable in the Capital Stock of the Person making such payment or
distribution.



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



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



     “Revolving Note” has the meaning specified in Section 2.11(a).



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



     “Sale and Leaseback Transaction” means, with respect to the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any person whereby the Borrower or such
Subsidiary shall sell or transfer any Property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such Property.



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



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



     “Security Agreement” means the security agreement dated as of the Closing Date
executed in favor of the Administrative Agent by each of the Loan Parties, as amended, modified,
restated or supplemented from time to time.



18









 





     “Senior Note Documents” means the Senior Notes, the Senior Note Indenture, the Senior
Note Purchase Agreement, the Senior Note Registration Rights Agreement and all other documents,
instruments and agreements relating thereto, in each case as amended, modified, supplemented,
refinanced and replaced in accordance with the provisions hereof.



     “Senior Note Indenture” means the Indenture dated as of July 10, 2003 between the
Borrower and US Bank, National Association, as trustee, as amended, modified, supplemented,
refinanced and replaced in accordance with the provisions hereof.



     “Senior Note Purchase Agreement” means the Purchase Agreement dated as of July 10,
2003 among the Borrower and the initial purchasers of the Senior Notes, as amended, modified,
supplemented, refinanced and replaced in accordance with the provisions hereof.



     “Senior Note Registration Rights Agreement” means the Registration Rights Agreement
dated as of July 10, 2003 among the Borrower and the initial purchasers of the Senior Notes, as
amended, modified, supplemented, refinanced and replaced in accordance with the provisions hereof.



     “Senior Notes” means those 9% Senior Notes of the Borrower due July 15, 2011, as
amended, modified, supplemented, refinanced and replaced in accordance with the provisions hereof.



     “Subject Property” means the Property owned by the Borrower and described on
Schedule S-1.



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



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



     “Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap



19









 





Contracts, as determined based upon one or more mid-market or other readily
available quotations
provided by any recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).




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



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



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



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



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



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



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



     “Threshold Amount” means $5,000,000.



     “Total Consideration” means, with respect to any Acquisition, the aggregate cash and
non-cash consideration for such Acquisition (including the principal amount of any Indebtedness
assumed and the Borrower’s reasonable and good faith projections of the aggregate amount of any
contingent payments (including earn-out payments) that the Borrower or any Subsidiary will
ultimately have to pay in connection with such Acquisition, but specifically excluding the amount
of any Capital Stock of the Borrower issued to the seller).



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



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



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



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



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



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     “Unrestricted Cash” means cash on hand of the Borrower and its Subsidiaries that is
not subject to any Lien (other than any Lien in favor of the Administrative Agent securing the
Obligations) or any other restriction on access thereto or use thereof by the Borrower or any
Subsidiary.



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



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



     1.02 Other Interpretive Provisions.



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




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




      (b) (i) The words “herein,” “hereto,” “hereof” and
“hereunder” and words of similar import when used in any Loan Document shall
refer to such Loan Document as a whole and not to any particular provision thereof.




     (ii) Article, Section, Exhibit and Schedule references are to the Loan Document
in which such reference appears.




     (iii) The term “including” is by way of example and not limitation.




     (iv) The term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other writings,
however evidenced, whether in physical or electronic form.




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




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



     1.03 Accounting Terms.



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



21









 





implied interest component of any Synthetic Lease shall be made by the Borrower in accordance
with accepted financial practice and consistent with the terms of such Synthetic Lease.




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



     (c) Notwithstanding the above, the parties hereto acknowledge and agree that all calculations
of the Consolidated Total Leverage Ratio (including for purposes of determining the Applicable
Rate), the Consolidated Senior Secured Leverage Ratio and Consolidated Net Worth shall be made on a
Pro Forma Basis.



     1.04 Rounding.



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



     1.05 References to Agreements and Laws.



     Unless otherwise expressly provided herein, (a) references to Organization Documents,
agreements (including the Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions, supplements and
other modifications are not prohibited by any Loan Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing, supplementing
or interpreting such Law.



     1.06 Times of Day.



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



     1.07 Letter of Credit Amounts.



     Unless otherwise specified, all references herein to the amount of a Letter of Credit at any
time shall be deemed to mean the maximum face amount of such Letter of Credit after giving effect
to all increases thereof contemplated by such Letter of Credit or the Letter of Credit Application
therefor, whether or not such maximum face amount is in effect at such time.



22









 





ARTICLE II




THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01 Revolving Loans.



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



     (b) Additional Revolving Commitments. The Borrower may at any time, upon prior
written notice by the Borrower to the Administrative Agent, increase the Aggregate Revolving
Commitments by up to TWENTY-FIVE MILLION DOLLARS ($25,000,000) with additional Revolving
Commitments from any existing Lender or new Revolving Commitments from any other Person selected by
the Borrower and approved by the Administrative Agent (which approval shall not be unreasonably
withheld or delayed); provided that:




      (i) any such increase shall be in a minimum principal amount of $5 million and in
integral multiples of $5 million in excess thereof;




      (ii) no Default shall be continuing at the time of any such increase;




      (iii) no existing Lender shall be under any obligation to increase its Revolving
Commitment and any such decision whether to increase its Revolving Commitment shall be in
such Lender’s sole and absolute discretion; and




      (iv) any new Lender shall join this Agreement by executing such joinder documents
reasonably required by the Administrative Agent (but no consent from any existing Lender
(other than any consent described in (iii) above from any Lender that is increasing its
Revolving Commitment) shall be necessary in connection with the exercise of the Borrower’s
rights hereunder).




     In connection with any such increase in the Aggregate Revolving Commitments, Schedule
2.01 shall be revised by the Administrative Agent to reflect the new Revolving Commitments and
shall be distributed to the Lenders.



     2.02 Borrowings, Conversions and Continuations of Loans.



     (a) Each Borrowing, each conversion of Loans from one Type to the other, and each continuation
of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative
Agent, which may be given by telephone. Each such notice must be received by the



23









 





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




     (b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each
Lender of the details of any automatic conversion to Base Rate Loans described in the preceding
subsection. In the case of a Borrowing, each Lender shall make the amount of its Loan available to
the Administrative Agent in immediately available funds at the Administrative Agent’s Office not
later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing
is the initial Credit Extension, Section 5.01), the Administrative Agent shall make all
funds so received available to the Borrower in like funds as received by the Administrative Agent
either by (i) crediting the account of the Borrower on the books of Bank of America with the amount
of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions
provided to (and reasonably acceptable to) the Administrative Agent by the Borrower;
provided, however, that if, on the date of a Borrowing of Revolving Loans, there
are Swing Line Loans or L/C Borrowings outstanding, then the proceeds of such Borrowing shall be
applied, first, to the payment in full of any such L/C Borrowings, second, to the
payment in full of any such Swing Line Loans, and third, to the Borrower as provided above.



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of the Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, (i) no Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders and (ii) the Required Lenders may demand that any or
all of the then outstanding Eurodollar Rate Loans be converted immediately to Base Rate Loans.



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



24









 





     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than six (6)
Interest Periods in effect with respect to Revolving Loans.



     2.03 Letters of Credit.



     (a) The Letter of Credit Commitment.




      (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for the account of
the Borrower or any of its Subsidiaries, and to amend or renew Letters of Credit previously
issued by it, in accordance with subsection (b) below, and (2) to honor drafts under the
Letters of Credit; and (B) the Lenders severally agree to participate in Letters of Credit
issued for the account of the Borrower; provided that the L/C Issuer shall not be
obligated to make any L/C Credit Extension with respect to any Letter of Credit, and no
Lender shall be obligated to participate in any Letter of Credit if as of the date of such
L/C Credit Extension, (x) the Total Revolving Outstandings would exceed the Aggregate
Revolving Commitments, (y) the aggregate Outstanding Amount of the Revolving Loans of any
Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Pro Rata Share of the Outstanding Amount of all
Swing Line Loans would exceed such Lender’s Revolving Commitment or (z) the Outstanding
Amount of the L/C Obligations would exceed the Letter of Credit Sublimit. Within the
foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during
the foregoing period, obtain Letters of Credit to replace Letters of Credit that have
expired or that have been drawn upon and reimbursed. All Existing Letters of Credit shall
be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.




      (ii) The L/C Issuer shall be under no obligation to issue any Letter of Credit if:




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




         (B) the issuance of such Letter of Credit would violate one or more policies of
the L/C Issuer applicable to borrowers generally (“L/C Issuer Policies”);




         (C) such Letter of Credit is in an initial amount less than $10,000 or is to be
denominated in a currency other than Dollars; or



25









 






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




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




      (iv) The L/C Issuer shall be under no obligation to issue or amend any Letter of Credit
if the L/C Issuer has received written notice from any Lender, the Administrative Agent or
any Loan Party, on or prior to the Business Day prior to the requested date of issuance or
amendment of such Letter of Credit, that one or more applicable conditions contained in
Article V shall not then be satisfied.



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




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




      (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Upon receipt
by the L/C Issuer of confirmation from the Administrative Agent that the requested issuance
or amendment is permitted in accordance with the terms hereof, then, subject to the terms
and conditions hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the Borrower or enter into the applicable amendment, as the case may be,
in each case in accordance with the L/C Issuer’s usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Lender’s
Pro Rata Share times the amount of such Letter of Credit.



26









 






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




      (iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to an advising bank with respect thereto or to the beneficiary thereof, the L/C
Issuer will also deliver to the Borrower and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment. The Administrative Agent shall provide each
Lender a quarterly report of the outstanding Letters of Credit and the amount of each
Lender’s respective participation therein.



     (c) Drawings and Reimbursements; Funding of Participations.




      (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the Administrative
Agent thereof. Not later than 11:00 a.m. on the date of any payment by the L/C Issuer under
a Letter of Credit (each such date, an “Honor Date”), the Borrower shall reimburse
the L/C Issuer through the Administrative Agent in an amount equal to the amount of such
drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such Lender’s
Pro Rata Share thereof. In such event, the Borrower shall be deemed to have requested a
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples specified in Section
2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Aggregate Revolving Commitments and the conditions set forth in
Section 5.02 (other than the delivery of a Loan Notice). Any notice given by the
L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the lack of
such an immediate confirmation shall not affect the conclusiveness or binding effect of such
notice.




      (ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the Administrative Agent for
the account of the L/C Issuer at the Administrative Agent’s Office in an amount equal to its
Pro Rata Share of



27









 






the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such
notice by the Administrative Agent, whereupon, subject to the provisions of Section
2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a
Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the
funds so received to the L/C Issuer.




      (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Borrowing of Base Rate Loans because the conditions set forth in Section 5.02 cannot
be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the
L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together with interest)
and shall bear interest at the Default Rate (provided that if any amount of such L/C
Borrowing is due to any Lender failing to make its Pro Rata Share of a Base Rate Loan
pursuant to Section 2.03(c)(ii), then such amount of the L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at (A) from the Honor
Date to the second Business Day after the Honor Date, the Base Rate plus the
Applicable Margin and (B) thereafter, the Default Rate). In such event, each Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant to
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such
L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its
participation obligation under this Section 2.03.




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




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




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



28









 





     (d) Repayment of Participations.




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




      (ii) If any payment received by the Administrative Agent for the account of the L/C
Issuer pursuant to Section 2.03(c)(i) is required to be returned under any of the
circumstances described in Section 11.06 (including pursuant to any settlement
entered into by the L/C Issuer in its discretion), each Lender shall pay to the
Administrative Agent for the account of the L/C Issuer its Pro Rata Share thereof on demand
of the Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.



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




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




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




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




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



29









 






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



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



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




      (g) Cash Collateral; Replacement.




         (i) Upon the request of the Administrative Agent or the Required Lenders, (A) if the
L/C Issuer has honored any full or partial drawing request under any Letter of Credit and
such drawing has resulted in an L/C Borrowing, or (B) if, as of the Maturity Date, (x) any
Letter of Credit may for any reason remain outstanding and partially or wholly undrawn or
(y) any amount remains available to be drawn under any Letter of Credit by reason of the
operation of Section 3.14 of the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice (or such later version thereof as may be
in effect at the time of issuance), the Borrower shall immediately Cash Collateralize the
then Outstanding Amount of all L/C Obligations (in an amount equal to such Outstanding
Amount determined as of the date of such L/C Borrowing or the Maturity Date, as the case may
be). For purposes hereof, “Cash 



30









 






Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for
the L/C Obligations, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to the Administrative Agent and the L/C Issuer (which documents are
hereby consented to by the Lenders). Derivatives of such term have corresponding meanings.
The Borrower hereby grants to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash collateral shall be maintained in blocked,
interest bearing deposit accounts at Bank of America. All interest on such cash collateral
shall be paid as follows: (A) if such cash collateral is delivered to the Administrative
Agent by the Borrower pursuant to any of Sections 2.03(g)(i), 2.05 or
9.02, then such interest shall be paid to the Borrower upon the Borrower’s request,
provided that such interest shall first be applied to all outstanding Obligations at
such time and the balance shall be distributed to the Borrower, and (B) if such cash
collateral is delivered to the Administrative Agent by the Borrower at any time that such
cash collateral is not required to be delivered under this Agreement, then such interest
shall be distributed to the Borrower (provided that if at any time after such delivery of
cash collateral the Borrower would have been required to deliver cash collateral pursuant to
any of Sections 2.03(g)(i), 2.05 or 9.02, the interest shall be
applied as provided in clause (A)).




         (ii) If, as of the Maturity Date, any Letter of Credit may for any reason remain
outstanding and partially or wholly undrawn and the Borrower Cash Collateralizes such Letter
of Credit pursuant to clause (i) above, the Borrower agrees to replace such Letter of Credit
with a new letter of credit issued under any replacement credit facility entered into by the
Borrower with sixty days after the closing of such replacement credit facility.



     (h) Applicability of ISP. Unless otherwise expressly agreed by the L/C Issuer and the
Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing
Letter of Credit), the rules of the “International Standby Practices 1998” published by the
Institute of International Banking Law & Practice (or such later version thereof as may be in
effect at the time of issuance) (the “ISP”) shall apply to each Letter of Credit.



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share a Letter of Credit fee for each Letter
of Credit equal to the Applicable Rate for Eurodollar Loans times the daily maximum amount
available to be drawn under such Letter of Credit (it being understood that for purposes of
computation of the Letter of Credit fee the maximum amount available to be drawn under such Letter
of Credit for any day shall be the maximum amount actually available to be drawn under such Letter
of Credit on such day). Letter of Credit fees shall be due and payable as follows: (i) with
respect to those Letters of Credit identified on Schedule 2.03 hereto and such other
Letters of Credit as the Administrative Agent may from time to time agree in its sole discretion at
the Borrower’s request, (A) Letter of Credit fees equal to seventy-five basis points (0.75%)
times the daily maximum amount available to be drawn under the applicable Letter of Credit
shall be due and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of such Letter of Credit,
on the Letter of Credit Expiration Date and thereafter on demand and (B) the balance of the Letter
of Credit fees owing in respect of such Letters of Credit shall be payable on the first Business
Day after the end of each December, and (ii) with respect to all other Letters of Credit, the full
amount of the Letter of Credit fees owing in respect of such Letters of Credit to shall be due and
payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. The letter of credit fees shall be
computed on a quarterly or annual basis, as applicable, in arrears. If there is any change in the
Applicable Rate during any quarter, the daily maximum amount of



31









 





each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for
each period during such quarter that such Applicable Rate was in effect.




     (j) Documentary and Processing Charges Payable to L/C Issuer. The Borrower shall pay
directly to the L/C Issuer for its own account a fronting fee with respect to each Letter of Credit
in the amounts and at the times specified in the Fee Letter. In addition, the Borrower shall pay
directly to the L/C Issuer for its own account the customary issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the L/C Issuer relating to letters
of credit as from time to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.



     (k) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



     2.04 Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees to make loans (each such loan, a “Swing Line Loan”) to the Borrower in
Dollars from time to time on any Business Day during the Availability Period in an aggregate amount
not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the
fact that such Swing Line Loans, when aggregated with the Pro Rata Share of the Outstanding Amount
of Revolving Loans and L/C Obligations of the Swing Line Lender in its capacity as a Lender of
Revolving Loans, may exceed the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total Revolving
Outstandings shall not exceed the Aggregate Revolving Commitments, and (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata Share
of the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro Rata Share of the
Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Revolving Commitment, and
provided, further, that the Borrower shall not use the proceeds of any Swing Line
Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may borrow under this Section 2.04, prepay
under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan
shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line
Lender a risk participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Pro Rata Share times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. Each Borrowing of Swing Line Loans shall be made upon the
Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum principal amount of $500,000, or a whole
multiple of $100,000 in excess thereof, and (ii) the requested borrowing date, which shall be a
Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line
Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing Line
Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Lender) prior to 2:00 p.m. on the date of the proposed Borrowing of Swing Line Loans (A) directing
the Swing Line Lender not to make such Swing



32









 





Line Loan as a result of the limitations set forth in the proviso to the first sentence of
Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article V is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.




     (c) Refinancing of Swing Line Loans.




      (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably requests and authorizes the Swing Line
Lender to so request on its behalf), that each Lender make a Base Rate Loan in an amount
equal to such Lender’s Pro Rata Share of the amount of any Swing Line Loan then outstanding.
Such request shall be made in writing (which written request shall be deemed to be a Loan
Notice for purposes hereof) and in accordance with the requirements of Section 2.02,
without regard to the minimum and multiples specified therein for the principal amount of
Base Rate Loans, but subject to the unutilized portion of the Aggregate Revolving
Commitments and the conditions set forth in Section 5.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make an amount equal
to its Pro Rata Share of the amount specified in such Loan Notice available to the
Administrative Agent in immediately available funds for the account of the Swing Line Lender
at the Administrative Agent’s Office not later than 1:00 p.m. on the day specified in such
Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.




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




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




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



33









 






such purchase or funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with interest as provided
herein.





     (d)  Repayment of Participations.




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




      (ii) If any payment received by the Swing Line Lender in respect of principal or
interest on any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section 11.06 (including pursuant to any
settlement entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such amount is returned, at a
rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such
demand upon the request of the Swing Line Lender.



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



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



     2.05 Prepayments.



     (a) Voluntary Prepayments of Loans.




      (i) Revolving Loans. The Borrower may, upon notice from the Borrower to the
Administrative Agent, at any time or from time to time voluntarily prepay Revolving Loans in
whole or in part without premium or penalty; provided that (i) such notice must be
received by the Administrative Agent not later than 11:00 a.m. (A) three Business Days prior
to any date of prepayment of Eurodollar Rate Loans, and (B) on the date of prepayment of
Base Rate Loans; (ii) any such prepayment of Eurodollar Rate Loans shall be in a principal
amount of $1,000,00 or a whole multiple of $500,000 in excess thereof (or, if less, the
entire principal amount thereof then outstanding); (iii) any such prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal amount thereof then outstanding). Each such
notice shall specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its receipt of each
such notice, and of the amount of such Lender’s Pro Rata Share of such prepayment. If such
notice is given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon.
Each such prepayment shall be applied to the Loans of the Lenders in accordance with their
respective Pro Rata Shares.



34









 






      (ii) Swing Line Loans. The Borrower may, upon notice to the Swing Line Lender
(with a copy to the Administrative Agent), at any time or from time to time, voluntarily
prepay Swing Line Loans in whole or in part without premium or penalty; provided
that (i) such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall
be in a minimum principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal amount thereof then outstanding). Each such
notice shall specify the date and amount of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.



     (b) Mandatory Prepayments of Loans. If for any reason the Total Revolving
Outstandings at any time exceed the Aggregate Revolving Commitments, the Borrower shall immediately
prepay Revolving Loans and/or the Swing Line Loans and/or Cash Collateralize the L/C Obligations in
an aggregate amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section
2.05(b) unless after the prepayment in full of the Revolving Loans and Swing Line Loans the
Total Revolving Outstandings exceed the Aggregate Revolving Commitments.



     2.06 Termination or Reduction of Aggregate Revolving Commitments.



     The Borrower may, upon notice from the Borrower to the Administrative Agent, terminate the
Aggregate Revolving Commitments or from time to time permanently reduce the Aggregate Revolving
Commitments to an amount not less than the Total Revolving Outstandings; provided that (i)
any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five
Business Days prior to the date of termination or reduction and (ii) any such partial reduction
shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess
thereof. The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Revolving Commitments. Any reduction of the Aggregate
Revolving Commitments shall be applied to the Revolving Commitment of each Lender according to its
Pro Rata Share. All commitment fees accrued until the effective date of any termination of the
Aggregate Revolving Commitments shall be paid on the effective date of such termination.



     2.07 Repayment of Loans.



     (a) The Borrower shall repay the aggregate outstanding principal amount of all Revolving Loans
on the Maturity Date.



     (b) The Borrower shall repay the outstanding principal amount of each Swing Line Loan on the
earlier to occur of (i) the date seven (7) days after such Swing Line Loan is made, (ii) demand by
the Swing Line Lender and (iii) the Maturity Date.



     2.08 Interest.



     (a) Subject to the provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall
bear interest on the outstanding principal amount thereof for each Interest Period at a rate per
annum equal to the sum of (A) the Eurodollar Rate for such Interest Period plus (B) the
Applicable Rate; (ii) each Base Rate Loan (including each Swing Line Loan) shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at a rate per annum
equal to the Base Rate plus the Applicable Rate.



35









 





     (b) Upon the occurrence and during the continuation of an Event of Default, the Borrower shall
pay interest on the principal amount of all outstanding Obligations at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.



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



     2.09 Fees.



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




      (a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Pro Rata Share, a commitment fee equal to the
product of (i) the Applicable Rate times (ii) the actual daily amount by which the
Aggregate Revolving Commitments exceed the sum of (A) the Outstanding Amount of Revolving
Loans and (B) the Outstanding Amount of L/C Obligations (it being understood that for
purposes of computation of the commitment fee (x) the maximum amount available to be drawn
under any Letter of Credit for any day shall be the maximum amount actually available to be
drawn under such Letter of Credit on such day and (y) the Outstanding Amount of Swing Line
Loans shall not be considered usage). The commitment fee shall accrue at all times during
the Availability Period, including at any time during which one or more of the conditions in
Article V is not met, and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the Maturity Date. The commitment fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable Rate during
any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in effect.




      (b) Other Fees.




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




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



     2.10 Computation of Interest and Fees.



     All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of
America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or



36









 





such portion is paid, provided that any Loan that is repaid on the same day on which
it is made shall, subject to Section 2.12(a), bear interest for one day.




     2.11 Evidence of Debt.



     (a) The Revolving Loans made by each Lender shall be evidenced by one or more accounts or
records maintained by such Lender and by the Administrative Agent in the ordinary course of
business. The accounts or records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Revolving Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any error in doing so
shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any
amount owing with respect to the Obligations. In the event of any conflict between the accounts
and records maintained by any Lender and the accounts and records of the Administrative Agent in
respect of such matters, the accounts and records of the Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made through the Administrative Agent,
the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in addition to such accounts or records
(provided that only the Swing Line Lender may request a Swing Line Note). Each such promissory
note shall (i) in the case of Revolving Loans, be in the form of Exhibit C-1 (a
“Revolving Note”), and (ii) in the case of Swing Line Loans, be in the form of Exhibit
C-2 (a “Swing Line Note”). Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect
thereto.



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



     2.12 Payments Generally.



     (a) All payments to be made by the Borrower shall be made without condition or deduction for
any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein,
all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account
of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue.



     (b) Subject to the definition of “Interest Period”, if any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



     (c) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder,
such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs
and amounts payable under Article III) incurred by the Administrative Agent and each
Lender, (ii) second, toward repayment of



37









 





interest and fees then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (iii) third, toward
repayment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.




     (d) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date
any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower
or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume
that the Borrower or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a corresponding amount to the
Person entitled thereto. If and to the extent that such payment was not in fact made to the
Administrative Agent in immediately available funds, then:




      (i) if the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Administrative Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest thereon in
respect of each day from and including the date such amount was made available by the
Administrative Agent to such Lender to the date such amount is repaid to the Administrative
Agent in immediately available funds at the Federal Funds Rate from time to time in effect;
and




      (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Administrative Agent the amount thereof in immediately available funds, together
with interest thereon for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is recovered by the
Administrative Agent (the “Compensation Period”) at a rate per annum equal to the
Federal Funds Rate from time to time in effect. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor
upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent,
together with interest thereon for the Compensation Period at a rate per annum equal to the
rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to
relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice
any rights which the Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.



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



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



     (f) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters
of Credit and Swing Line Loans and to make payments pursuant to Section 10.07 are several
and not joint. The failure of any Lender to make any Loan, to fund any such participation or to
make payments pursuant to Section 10.07 on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any



38









 





other Lender to so make its Loan, purchase its participation or to make payments pursuant to
Section 10.07.




     (g) Subject to Section 3.01(e), nothing herein shall be deemed to obligate any Lender
to obtain the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.



     2.13 Sharing of Payments.



     If, other than as expressly provided elsewhere herein, any Lender shall obtain on account of
the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it
(but not including any amounts applied by the Swing Line Lender to outstanding Swing Line Loans),
any payment (whether voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in excess of its ratable share (or other share contemplated hereunder) thereof, such
Lender shall immediately (a) notify the Administrative Agent of such fact, and (b) purchase from
the other Lenders such participations in the Loans made by them and/or such subparticipations in
the participations in L/C Obligations or Swing Line Loans held by them, as the case may be, as
shall be necessary to cause such purchasing Lender to share the excess payment in respect of such
Loans or such participations, as the case may be, pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter recovered from the
purchasing Lender under any of the circumstances described in Section 11.06 (including
pursuant to any settlement entered into by the purchasing Lender in its discretion), such purchase
shall to that extent be rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying Lender’s ratable share
(according to the proportion of (i) the amount of such paying Lender’s required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a participation from another
Lender may exercise all rights of a Lender hereunder with respect to the amount of such
participation as if such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this Section and will in each
case notify the Lenders following any such purchases or repayments. Each Lender that purchases a
participation pursuant to this Section shall from and after such purchase have the right to give
all notices, requests, demands, directions and other communications under this Agreement with
respect to the portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased.



ARTICLE III




TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01 Taxes.



     (a) Subject to Section 11.15, any and all payments by any Loan Party to or for the
account of the Administrative Agent or any Lender under any Loan Document shall be made free and
clear of and without deduction for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and all liabilities with respect
thereto, excluding, in the case of the Administrative Agent and each Lender, taxes imposed
on or measured by its overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the Laws of which the
Administrative Agent or such Lender, as the case may be, is organized or maintains a lending office
(all such non-excluded taxes, duties, levies, imposts, deductions,



39









 





assessments, fees, withholdings or similar charges, and liabilities being hereinafter referred
to as “Taxes”). If any Loan Party shall be required by any Laws to deduct any Taxes from
or in respect of any sum payable under any Loan Document to the Administrative Agent or any Lender,
(i) the sum payable shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section), each of the
Administrative Agent and such Lender receives an amount equal to the sum it would have received had
no such deductions been made, (ii) such Loan Party shall make such deductions, (iii) such Loan
Party shall pay the full amount deducted to the relevant taxation authority or other authority in
accordance with applicable Laws, and (iv) within thirty days after the date of such payment, such
Loan Party shall furnish to the Administrative Agent (which shall forward the same to such Lender)
the original or a certified copy of a receipt evidencing payment thereof or if no receipt is
available, other evidence of payment reasonably satisfactory to the Administrative Agent.




     (b) In addition, the Borrower agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as “Other Taxes”).



     (c) If the Borrower shall be required to deduct or pay any Taxes or Other Taxes from or in
respect of any sum payable under any Loan Document to the Administrative Agent or any Lender, the
Borrower shall also pay to the Administrative Agent or to such Lender, as the case may be, at the
time interest is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all taxes, including
taxes imposed on or measured by net income) that the Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.



     (d) The Borrower agrees to indemnify the Administrative Agent and each Lender for (i) the full
amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under Section 3.01(c) and (iii) any liability (including
additions to tax, penalties, interest and expenses) arising therefrom or with respect thereto, in
each case whether or not such Taxes or Other Taxes were correctly or legally imposed or asserted by
the relevant Governmental Authority. Payment under this subsection (d) shall be made within thirty
days after the date the Lender or the Administrative Agent makes a demand therefor.



     (e) If any Loan Party is required to pay any amount to any Lender or the Administrative Agent
pursuant to this Section 3.01, then such Lender shall use reasonable efforts (consistent
with legal and regulatory restrictions) to change the jurisdiction of its Lending Office so as to
eliminate any such additional payment which may thereafter accrue, if such change in the reasonable
judgment of such Lender is not otherwise disadvantageous to such Lender.



     (f) If the Borrower determines in good faith that a reasonable basis exists for contesting any
Taxes for which indemnification has been demanded hereunder or on account of which the Borrower’s
payment to a Lender has been increased hereunder, the relevant Lender or the Administrative Agent,
as applicable, shall cooperate with the Borrower in challenging such Taxes at the Borrower’s
expense if so requested by the Borrower in writing.



40









 





     3.02 Illegality.



     If any Lender determines that any Law has made it unlawful, or that any Governmental Authority
has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain
or fund Eurodollar Rate Loans, or to determine or charge interest rates based upon the Eurodollar
Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any
obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans
to Eurodollar Rate Loans shall be suspended until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, the Borrower shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may
lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such
Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such prepayment
or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.
Each Lender agrees to designate a different Lending Office if such designation will avoid the need
for such notice, prepayment or conversion and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.



     3.03 Inability to Determine Rates.



     If the Administrative Agent determines in good faith that adequate and reasonable means do not
exist for determining the Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan, or that the Eurodollar Base Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to
the Lenders of funding such Loan, the Administrative Agent will promptly notify the Borrower and
all Lenders. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans
shall be suspended until the Administrative Agent revokes such notice. Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such
request into a request for a Borrowing of Base Rate Loans in the amount specified therein.



     3.04 Increased Cost and Reduced Return; Capital Adequacy.



     (a) If any Lender determines in good faith that as a result of the introduction of or any
change in or in the interpretation of any Law, or such Lender’s compliance therewith, there shall
be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Loans or (as the case may be) issuing or participating in Letters of Credit, or a
reduction in the amount received or receivable by such Lender in connection with any of the
foregoing (excluding for purposes of this subsection (a) any such increased costs or reduction in
amount resulting from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern),
(ii) changes in the basis of taxation of overall net income or overall gross income by the United
States or any foreign jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve requirements utilized,
as to Eurodollar Rate Loans, in the determination of the Eurodollar Rate), then from time to time
upon demand of such Lender (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to such Lender such additional amounts as will compensate such Lender for such increased
cost or reduction.



     (b) If any Lender determines in good faith that the introduction of any Law regarding capital
adequacy or any change therein or in the interpretation thereof, or compliance by such Lender (or
its Lending Office) therewith, has the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such Lender’s obligations
hereunder (taking



41









 





into consideration its policies with respect to capital adequacy and such Lender’s desired
return on capital), then from time to time upon demand of such Lender (with a copy of such demand
to the Administrative Agent), the Borrower shall pay to such Lender such additional amounts as will
compensate such Lender for such reduction.




     3.05 Funding Losses.



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




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




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




      (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
11.16;




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



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



     3.06 Matters Applicable to all Requests for Compensation.



     (a) A certificate of the Administrative Agent or any Lender claiming compensation under this
Article III and setting forth the additional amount or amounts to be paid to it hereunder
shall be conclusive in the absence of manifest error. In determining such amount, the
Administrative Agent or such Lender may use any reasonable averaging and attribution methods.



     (b) Upon any Lender’s making a claim for compensation under Section 3.01 or
3.04, the Borrower may replace such Lender in accordance with Section 11.16.



     3.07 Survival.



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



42









 





ARTICLE IV




GUARANTY




     4.01 The Guaranty.



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



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



     4.02 Obligations Unconditional.



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




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




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




      (c) the maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any right under
any of the Loan



43









 






Documents, any Swap Contract between any Loan Party and any Lender, or any Affiliate of
a Lender, or any other agreement or instrument referred to in the Loan Documents or such
Swap Contracts shall be waived or any other guarantee of any of the Obligations or any
security therefor shall be released, impaired or exchanged in whole or in part or otherwise
dealt with;




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




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



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



     4.03 Reinstatement.



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



     4.04 Certain Additional Waivers.



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



     4.05 Remedies.



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




44










 






     4.06 Rights of Contribution.



     The Guarantors hereby agree as among themselves that, if any Guarantor shall make an Excess
Payment (as defined below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor’s Contribution Share (as defined below) of
such Excess Payment. The payment obligations of any Guarantor under this Section 4.06
shall be subordinate and subject in right of payment to the Obligations until such time as the
Obligations have been paid in full and the Revolving Commitments have expired or terminated, and
none of the Guarantors shall exercise any right or remedy under this Section 4.06 against
any other Guarantor until such Obligations have been paid in full and the Revolving Commitments
have expired or terminated. For purposes of this Section 4.06, (a) ”Excess Payment” shall
mean the amount paid by any Guarantor in excess of its Ratable Share of any Guaranteed Obligations;
(b) ”Ratable Share” shall mean, for any Guarantor in respect of any payment of Obligations, the
ratio (expressed as a percentage) as of the date of such payment of Guaranteed Obligations of (i)
the amount by which the aggregate present fair saleable value of all of its assets and properties
exceeds the amount of all debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but excluding the obligations of such
Guarantor hereunder) to (ii) the amount by which the aggregate present fair saleable value of all
assets and other properties of all of the Loan Parties exceeds the amount of all of the debts and
liabilities (including contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Loan Parties hereunder) of the Loan Parties; provided,
however, that, for purposes of calculating the Ratable Shares of the Guarantors in respect
of any payment of Obligations, any Guarantor that became a Guarantor subsequent to the date of any
such payment shall be deemed to have been a Guarantor on the date of such payment and the financial
information for such Guarantor as of the date such Guarantor became a Guarantor shall be utilized
for such Guarantor in connection with such payment; (c) ”Contribution Share” shall mean, for any
Guarantor in respect of any Excess Payment made by any other Guarantor, the ratio (expressed as a
percentage) as of the date of such Excess Payment of (i) the amount by which the aggregate present
fair saleable value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of such Guarantor hereunder) to (ii) the amount by which
the aggregate present fair saleable value of all assets and other properties of the Loan Parties
other than the maker of such Excess Payment exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated liabilities, but excluding the
obligations of the Loan Parties) of the Loan Parties other than the maker of such Excess Payment;
provided, however, that, for purposes of calculating the Contribution Shares of the
Guarantors in respect of any Excess Payment, any Guarantor that became a Guarantor subsequent to
the date of any such Excess Payment shall be deemed to have been a Guarantor on the date of such
Excess Payment and the financial information for such Guarantor as of the date such Guarantor
became a Guarantor shall be utilized for such Guarantor in connection with such Excess Payment; and
(d) ”Guaranteed Obligations” shall mean the Obligations guaranteed by the Guarantors pursuant to
this Article IV. This Section 4.06 shall not be deemed to affect any right of
subrogation, indemnity, reimbursement or contribution that any Guarantor may have under Law against
the Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding the foregoing,
all rights of contribution against any Guarantor shall terminate from and after such time, if ever,
that such Guarantor shall be relieved of its obligations in accordance with Section 10.11.



     4.07 Guarantee of Payment; Continuing Guarantee.



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



45









 





ARTICLE V




CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




     5.01 Conditions of Initial Credit Extension.



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




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




     (b) Organization Documents, Resolutions, Etc. Receipt by the Administrative
Agent’s of the following, each of which shall be originals or facsimiles (followed promptly
by originals), dated as of a recent date before the Closing Date and in form and substance
satisfactory to the Administrative Agent and its legal counsel:




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




     (ii) a certificate from the secretary or assistant secretary of each Loan Party
attesting to the resolutions of such Loan Party’s board of directors and the
incumbency of Responsible Officers of each Loan Party evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan Documents
to which such Loan Party is a party; and




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




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




     (d) Perfection and Priority of Liens. Receipt by the Administrative Agent of
the following:




     (i) searches of Uniform Commercial Code filings in the jurisdiction of
formation of each Loan Party;




     (ii) searches of ownership of, and Liens on, intellectual property of each Loan
Party in the appropriate governmental offices; and



46









 






     (iii) duly executed notices of grant of security interest in the form required
by the Security Agreement as are reasonably requested by the Administrative Agent to
perfect the Administrative Agent’s security interest in the intellectual property of
the Loan Parties.




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




     (i) the Audited Financial Statements;




     (ii) interim quarterly financial statements of the Borrower and its
Subsidiaries for the fiscal quarter ending September 30, 2004;




     (iii) projections of the financial condition, results of operations and cash
flows for the Borrower and its Subsidiaries for fiscal years ending December 31,
2005, December 31, 2006 and December 31, 2007 (collectively, the “Closing Date
Projections”); and




     (iv) such other information as the Administrative Agent may reasonably request.




     (f) No Material Adverse Change. There shall not have occurred a material
adverse change since December 31, 2003 in the business, assets, liabilities (actual or
contingent), operations, financial condition or prospects of the Borrower, together with its
Subsidiaries taken as a whole.




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




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




     (i) Attorney Costs. The Borrower shall have paid all Attorney Costs of the
Administrative Agent to the extent invoiced prior to the Closing Date, plus such additional
amounts of Attorney Costs as shall constitute the Administrative Agent’s reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude a final settling of accounts between the
Borrower and the Administrative Agent, as applicable).



     5.02 Conditions to all Credit Extensions.



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




     (a) The representations and warranties of each Loan Party contained in Article
VI and in the other Loan Documents shall be true and correct in all material respects on
and as of the date of such Credit Extension, except to the extent that such representations
and warranties specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date, and except that for purposes of this Section 5.02,
the representations and warranties contained in subsections (a) and (b) of Section
6.05 shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of Section 7.01.



47









 






     (b) No Default shall exist, or would result from such proposed Credit Extension.




     (c) There shall not have been commenced against the Borrower or any Subsidiary an
involuntary case under any applicable Debtor Relief Law, now or hereafter in effect, or any
case, proceeding or other action for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any substantial
part of its Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain undismissed.




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



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



ARTICLE VI




REPRESENTATIONS AND WARRANTIES




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



     6.01 Existence, Qualification and Power.



     Each Loan Party (a) is a corporation, partnership or limited liability company duly organized
or formed, validly existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its assets and carry on
its business and (ii) execute, deliver and perform its obligations under the Loan Documents to
which it is a party, and (c) is duly qualified and is licensed and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of properties or the conduct of its
business requires such qualification or license; except in each case referred to in clause (b)(i)

or (c), to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect.



     6.02 Authorization; No Contravention.



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



     6.03 Governmental Authorization; Other Consents.



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



48









 





other Loan Document, other than (i) those that have already been obtained and are in full
force and effect and (ii) filings to perfect the Liens created by the Collateral Documents.



     6.04 Binding Effect.



     This Agreement and each other Loan Document has been duly executed and delivered by each Loan
Party that is party thereto. This Agreement and each other Loan Document constitutes a legal,
valid and binding obligation of each Loan Party that is party thereto, enforceable against each
such Loan Party in accordance with its terms, except as enforceability may be limited by applicable
Debtor Relief Laws or by equitable principals relating to enforceability.



     6.05 Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein; and
(ii) fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein.



     (b) The unaudited consolidated financial statements of the Borrower and its Subsidiaries dated
September 30, 2004 and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (ii) fairly present in all material respects the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby in accordance with GAAP consistently applied throughout the period covered thereby,
subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments.



     (c) From December 31, 2003 to and including the Closing Date, there has been no Disposition by
the Borrower or any Subsidiary, or any Involuntary Disposition, of any material part of the
business or Property of the Borrower and its Subsidiaries, taken as a whole, and no purchase or
other acquisition by any of them of any business or Property (including any Capital Stock of any
other Person) material in relation to the consolidated financial condition of the Borrower and its
Subsidiaries, taken as a whole, in each case, which is not reflected in the foregoing financial
statements or in the notes thereto and has not otherwise been disclosed in writing to the Lenders
on or prior to the Closing Date.



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



     (e) Since December 31, 2003 there has been no event or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.



49









 





     6.06 Litigation.



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



     6.07 No Default.



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



     (b) No Default has occurred and is continuing.



     6.08 Ownership of Property; Liens.



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



     6.09 Environmental Compliance.



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




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




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




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




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



50









 






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




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



     6.10 Insurance.



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



     6.11 Taxes.



     The Borrower and its Subsidiaries have filed all federal, state and other material tax returns
and reports required to be filed, and have paid all federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against the Borrower or any Subsidiary
that would, if made, have a Material Adverse Effect.



     6.12 ERISA Compliance.



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



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



     (c) (i) No Pension Plan has any Unfunded Pension Liability; (ii) no Loan Party nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred
which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under



51









 





Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (iii) no Loan Party
nor any ERISA Affiliate has engaged in a transaction that could be subject to Sections 4069 or
4212(c) of ERISA.



     6.13 Subsidiaries.



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



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



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section
8.01 or Section 8.05 or subject to any restriction contained in any agreement or
instrument between the Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of Section 9.01(e) will be margin stock.



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



     6.15 Disclosure.



     No report, financial statement, certificate or other information furnished (whether in writing
or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information (including the Closing Date
Projections), the Loan Parties represent only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.



     6.16 Compliance with Laws.



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



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     6.17 Intellectual Property; Licenses, Etc.



     The Borrower and its Subsidiaries own, or possess the legal right to use, all of the
trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that are reasonably
necessary for the operation of their respective businesses. Set forth on Schedule 6.17 is
a list of all IP Rights registered or pending registration with the United States Copyright Office
or the United States Patent and Trademark Office and owned by each Loan Party or that any Loan
Party has the right to use as of the Closing Date. No claim that is reasonably likely to be
determined adversely to the Borrower or any of its Subsidiaries and, if determined adversely, could
reasonably be expected to have a Material Adverse Effect has been asserted and is pending by any
Person challenging or questioning the use of any IP Rights or the validity or effectiveness of any
IP Rights, nor does any Loan Party know of any such claim. Except as could not reasonably be
expected to have a Material Adverse Effect, to the knowledge of the Responsible Officers of the
Loan Parties, the use of any IP Rights by the Borrower or any Subsidiary or the granting of a right
or a license in respect of any IP Rights from the Borrower or any Subsidiary does not infringe on
the rights of any Person. As of the Closing Date, none of the IP Rights owned by any of the Loan
Parties is subject to any licensing agreement or similar arrangement except as set forth on
Schedule 6.17.



     6.18 Effectiveness of Security Interests in the Collateral.



     The Collateral Documents, when executed and delivered by all parties thereto, create valid
security interests in, and Liens on, the Collateral purported to be covered thereby.



     6.19 Legal Name; State of Formation.



     (a) The exact legal name and state of formation of each Loan Party is as set forth on the
signature pages to this Agreement (or any Joinder Agreement, as applicable, or as indicated
pursuant to Section 8.13).



     (b) Except as set forth on Schedule 6.19, no Loan Party has during the five years
preceding the Closing Date (i) changed its legal name, (ii) changed its state of formation, or
(iii) been party to a merger, consolidation or other similar change in structure.



     6.20 Labor Matters.



     There are no collective bargaining agreements or Multiemployer Plans covering the employees of
the Borrower or any Subsidiary as of the Closing Date and neither the Borrower nor any Subsidiary
has suffered any strikes, walkouts, work stoppages or other material labor difficulty within the
last five years.



ARTICLE VII




AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding (other than any Letter of Credit that is Cash Collateralized pursuant to Section
2.03(g)), the Loan Parties shall and shall cause each Subsidiary to:



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     7.01 Financial Statements.



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




     (a) as soon as available, but in any event by the earlier of the date ninety (90) days
after the end of each fiscal year of the Borrower and the date the Borrower is required to
file its Form 10-K with the SEC (without giving effect to any extension of such due date,
whether obtained by filing the notification permitted by Rule 12b-25 or any successor
provision thereto or otherwise), a consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated and consolidating statements of income or operations, shareholders’ equity and
cash flows for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of PricewaterhouseCoopers or other
independent certified public accountant of nationally recognized standing reasonably
acceptable to the Administrative Agent, which report and opinion shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to any “going
concern” or like qualification or exception or any qualification or exception as to the
scope of such audit; and




     (b) as soon as available, but in any event by the earlier of the date forty-five (45)
days after the end of each fiscal quarter (other than the fourth fiscal quarter) of each
fiscal year of the Borrower and the date the Borrower is required to file its Form 10-Q with
the SEC (without giving effect to any extension of such due date) for such fiscal quarter, a
consolidated and consolidating balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal quarter, and the related consolidated and consolidating statements of
income or operations and cash flows for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, setting forth in each case in comparative form the
figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and certified by
a Responsible Officer of the Borrower as fairly presenting in all material respects the
financial condition, results of operations, shareholders’ equity and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes.



     7.02 Certificates; Other Information.



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




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




     (b) within forty-five (45) days of the start of each fiscal year of the Borrower, the
annual business plan and budget of the Borrower and its Subsidiaries containing, among other
things, projected financial statements for each quarter of such fiscal year;




     (c) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of
directors (or the audit committee of the board of directors) of the Borrower by independent



54









 






accountants in connection with the accounts or books of the Borrower or any Subsidiary,
or any audit of any of them;




     (d) promptly after the same are available, (i) copies of Form 10-Q quarterly reports,
Form 10-K annual reports, and Form 8-K current reports, (ii) notice of (and, upon the
request of the Administrative Agent, copies of) any other filings made by Borrower or any
Subsidiary with the SEC concerning material business developments, and (iii) notice of (and,
upon the request of the Administrative Agent, copies of) any other information that is
provided by Borrower to its shareholders generally;




     (e) upon the request of the Administrative Agent or any Lender, copies of all reports
and written information to and from the United States Environmental Protection Agency, or
any state or local agency responsible for environmental matters, the United States
Occupational Health and Safety Administration, or any state or local agency responsible for
health and safety matters, or any successor agencies or Governmental Authorities concerning
allegations of Environmental Liability;




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




     (g) concurrently with the delivery of the financial statements referred to in
Section 7.01(a) and the financial statements referred to in Section 7.01(b)
for the fiscal quarter ended June 30 of each fiscal year, a certificate of a Responsible
Officer of the Borrower listing (i) all applications, if any, for Copyrights, Patents or
Trademarks (each such term as defined in the Security Agreement) made with the United States
Copyright Office or the United States Patent and Trademark Office since the date of the
prior certificate (or, in the case of the first such certificate, the Closing Date), (ii)
all issuances of registrations or letters on existing applications for Copyrights, Patents
and Trademarks (each such term as defined in the Security Agreement) by the United States
Copyright Office or the United States Patent and Trademark Office received since the date of
the prior certificate (or, in the case of the first such certificate, the Closing Date), and
(iii) all material Trademark Licenses, Copyright Licenses and Patent Licenses (each such
term as defined in the Security Agreement) registered or pending registration with the
United States Copyright Office or the United States Patent and Trademark Office and entered
into since the date of the prior certificate (or, in the case of the first such certificate,
the Closing Date).



       Documents required to be delivered pursuant to Section 7.01(a) or (b) or
Section 7.02(d) may be delivered electronically and if so delivered, shall be deemed to
have been delivered on the date (i) on which the Borrower posts such documents, or provides a link
thereto on the Borrower’s website on the Internet at the website address listed on Schedule
11.02; or (ii) on which such documents are posted on the Borrower’s behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or whether sponsored by
the Administrative Agent); provided that: (i) the Borrower shall deliver paper copies of
such documents to the Administrative Agent or any Lender that requests the Borrower to deliver such
paper copies until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify (which may be by facsimile
or electronic mail) the Administrative Agent and each Lender of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Compliance Certificates required by
Section 7.02 to the Administrative Agent. Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the



55









 





delivery or to maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request for delivery, and
each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of
such documents.



     7.03 Notices.



     (a) Promptly (and in any event within two Business Days) after a Responsible Officer of a Loan
Party obtains knowledge thereof, notify the Administrative Agent and each Lender of the occurrence
of any Default.



     (b) Promptly notify the Administrative Agent and each Lender of any material change in
accounting policies or financial reporting practices by the Borrower or any Subsidiary.



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



     7.04 Payment of Obligations.



     Pay and discharge as the same shall become due and payable prior to any penalty or interest
accruing thereon, all tax liabilities, assessments and governmental charges or levies upon it or
its properties or assets, unless the same are being contested in good faith by appropriate
proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained
by the Borrower or such Subsidiary.



     7.05 Preservation of Existence, Etc.



     (a) Preserve, renew and maintain in full force and effect its legal existence under the Laws
of the jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05; (b) preserve, renew and maintain in full force and effect its good standing under
the Laws of the jurisdiction of its organization except (i) in a transaction permitted by
Section 8.04 or 8.05 and (ii) as could not reasonably be expected to have a
Material Adverse Effect; (c) take all reasonable action to maintain all material rights,
privileges, permits, licenses and franchises necessary or desirable (in the Borrower’s commercially
reasonable judgment) in the normal conduct of its business; and (d) preserve or renew all of its
material registered patents, trademarks, trade names and service marks used in and necessary to its
business.



     7.06 Maintenance of Properties.



     (a) Maintain, preserve and protect all of its material properties and equipment necessary in
the operation of its business in good working order and condition, ordinary wear and tear and
Involuntary Dispositions excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof as appropriate in the exercise of its commercially reasonable judgment; and
(c) use the standard of care typical in the industry in the operation and maintenance of its
facilities.



     7.07 Maintenance of Insurance.



     Maintain in full force and effect insurance (including worker’s compensation insurance,
liability insurance, casualty insurance and business interruption insurance) with financially sound
and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering



56









 





such risks as are customarily carried by companies engaged in similar businesses and owning similar
properties in localities where the Borrower or the applicable Subsidiary operates, provided
that if any insurance company with which the Borrower maintains any such insurance fails to meet
the foregoing criteria subsequent to the Borrower obtaining such insurance, the Borrower will
within thirty (30) days after obtaining knowledge thereof obtain such insurance from one or more
insurance companies that meet the foregoing criteria



     7.08 Compliance with Laws.



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



     7.09 Books and Records.



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



     7.10 Inspection Rights; Field Audits.



     Permit representatives and independent contractors of the Administrative Agent and any Lender
to visit and inspect any of its properties, to examine its corporate, financial and operating
records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and
accounts with its directors, officers, and independent public accountants, all at the expense of
the Borrower and at such reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower; provided,
however, that (i) so long as no Event of Default has occurred and is continuing, the
Borrower shall be obligated to pay only the expenses incurred by the Administrative Agent in
connection with only two such visits and inspections made by the Administrative Agent in any
calendar year and (ii) when an Event of Default exists the Administrative Agent or any Lender (or
any of their respective representatives or independent contractors) may do any of the foregoing at
the expense of the Borrower at any time during normal business hours and without advance notice.
Notwithstanding the foregoing, neither the Borrower nor any Subsidiary shall be required to
disclose (a) any materials subject to a confidentiality obligation binding upon the Borrower or
such Subsidiary or (b) any communications protected by attorney-client privilege the disclosure or
inspection of which would waive such privilege.



     7.11 Use of Proceeds.



     Use the proceeds of the Credit Extensions to finance working capital, capital expenditures and
other general corporate purposes (including Permitted Acquisitions).



     7.12 Subsidiaries.



     (a) Within forty-five (45) days after the acquisition or formation of any Subsidiary, notify
the Administrative Agent thereof in writing, together with (i) jurisdiction of formation, (ii)
number of shares of



57









 





each class of Capital Stock outstanding, (iii) number and percentage of outstanding shares of
each class owned (directly or indirectly) by the Borrower or any Subsidiary and (iv) number and
effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and
all other similar rights with respect thereto.



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



     (c) Notwithstanding anything to the contrary contained herein, if at any time any Person that
is not a Guarantor provides a Guarantee of the Senior Notes, then the Borrower shall cause such
Person to deliver to the Administrative Agent, concurrent with such Person providing a Guarantee of
the Senior Notes, (i) a Joinder Agreement pursuant to which such Person become a Guarantor and
grants a Liens in its Property pursuant to the Collateral Documents and (ii) if requested by the
Administrative Agent or the Required Lenders, documents of the types referred to in Sections
5.01(b) and 5.01(d) and favorable opinions of counsel to such Person (which shall
cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (i)), all in form, content and scope reasonably satisfactory to
the Administrative Agent.



     7.13 ERISA Compliance.



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



ARTICLE VIII




NEGATIVE COVENANTS




     So long as any Lender shall have any Revolving Commitment hereunder, any Loan or other
Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding (other than any Letter of Credit that is Cash Collateralized pursuant to Section
2.03(g)), no Loan Party shall, nor shall it permit any Subsidiary to, directly or indirectly:



     8.01 Liens.



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




     (a) Liens pursuant to any Loan Document;



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     (b) Liens existing on the date hereof and listed on Schedule 8.01 and any
renewals or extensions thereof, provided that the Property covered thereby is not
increased and any renewal or extension of the obligations secured or benefited thereby is
permitted by Section 8.03(b);




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




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




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




     (f) deposits to secure (i) the performance of bids, trade contracts, licenses and
leases (other than Indebtedness), statutory obligations, surety bonds (other than bonds
related to judgments or litigation), performance bonds and other obligations of a like
nature incurred in the ordinary course of business, or (ii) indemnification obligations
relating to any Disposition (including any transaction described in the definition of
“Disposition”) permitted by this Agreement;




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




     (h) Liens securing judgments for the payment of money that do not constitute an Event
of Default pursuant to Section 9.01(h);




     (i) Liens securing purchase money Indebtedness permitted under Section 8.03(b),
(c) or (h) and any renewals or extensions thereof; provided that (i)
such Liens do not at any time encumber any Property other than the Property financed by such
Indebtedness and (ii) the Indebtedness secured thereby does not exceed the purchase price of
the Property acquired;




     (j) leases, licenses or subleases granted to others not interfering in any material
respect with the business of the Borrower or any Subsidiary;




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




     (l) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;



59









 






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




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




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




     (p) Liens on cash collateral securing reimbursement obligations of the Borrower and its
Subsidiaries under letters of credit;




     (q) the non-exclusive right granted to The Boeing Company to use certain property of
the Borrower pursuant to that certain letter agreement dated December 4, 2001 between the
Borrower and The Boeing Company, but only to the extent such right exists on the Closing
Date;




     (r) Liens granted to the United States Government pursuant to F.A.R. 52.232-16 and
F.A.R. 52.245-5 on certain assets of Borrower or any Subsidiary in prime contracts with the
United States Government or any United States Agency or as specified in subcontracts to
which the Borrower is a party;




     (s) Liens in favor of Optus in the Subject Property to secure the Borrower’s
obligations under the spacecraft sales contract (together with the related security
agreement and escrow agreement) between the Borrower and Optus;




     (t) Liens on real property (other than any satellite manufacturing facility) owned by
the Borrower or any of its Subsidiaries; and




     (u) earn-out or similar obligations issued by the Borrower or any of its Subsidiaries
in connection with an Acquisition (to the extent such earn-out or similar obligation is
deemed a Lien).



     8.02 Investments.



     Make any Investments, except:




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




     (b) Investments existing as of the Closing Date and set forth in Schedule 8.02;




     (c) Investments consisting of advances or loans to directors, officers and employees
for travel, entertainment, relocation and analogous business purposes made in the ordinary
course of business on terms consistent with past practices of the Borrower in an aggregate
principal amount (including Investments of such type set forth in Schedule 8.02) not
to exceed $1,000,000 at any time outstanding;




     (d) Investments by any Foreign Subsidiary in another Foreign Subsidiary;



60









 






     (e) Investments by the Borrower or any Domestic Subsidiary in the Borrower or any
Domestic Subsidiary;




     (f) Investments by the Borrower or any Domestic Subsidiary in Foreign Subsidiaries in
an aggregate principal amount not to exceed $1,000,000 at any time outstanding;




     (g) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business;




     (h) Investments received in satisfaction or partial satisfaction of judgments,
foreclosures of liens or settlement of litigation, claims or debts (whether pursuant to a
plan of reorganization or otherwise);




     (i)
Guarantees permitted by Section 8.03;




     (j) Permitted Acquisitions;




     (k) Investments consisting of cash collateral to secure letters of credit;




     (l) Investments in any of the Senior Notes to the extent permitted pursuant to
Section 8.12;




     (m) obligations under Swap Contracts to the extent permitted under Section
8.03;




     (n) Investments made as a result of the receipt of non-cash consideration from (i) a
Disposition permitted by Section 8.05, (ii) the sale of the Borrower’s
Transportation Management Systems division, or (iii) any licensing of IP Rights not
constituting a Disposition;




     (o) Investments by the Borrower in the amount and type of debt or equity securities
(including mutual funds) that are substantially the same as the investments made by
participants in the Borrower’s non-qualified deferred compensation plan (including any
subsequent or replacement plans) in an aggregate amount not to exceed $10,000,000 at any
time outstanding;




     (p) other Investments in an aggregate amount not to exceed $2,000,000 at any time
outstanding, provided that at the time of making any such Investment the Borrower
would be permitted to make a Restricted Payment in the amount of such Investment pursuant to
Section 8.06(a); and




     (q) Investments not contemplated in the foregoing clauses in an amount not to exceed
$7,500,000 in the aggregate at any time outstanding.



     8.03 Indebtedness.



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




     (a) Indebtedness under the Loan Documents;




     (b) Indebtedness of the Borrower and its Subsidiaries set forth in Schedule
8.03 and renewals, refinancings and extensions thereof on terms and conditions not
materially less favorable to the applicable debtor(s) and any increase in the principal
amount of any Indebtedness on such



61









 






Schedule by an aggregate amount of up to $1,000,000, and renewals, refinancings and
extensions thereof on terms and conditions not materially less favorable to the applicable
debtor(s);




     (c) purchase money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred (or assumed in connection with a Permitted Acquisition)
by the Borrower or any of its Subsidiaries to finance the purchase of fixed assets, and
renewals, refinancings and extensions thereof, provided that (i) the total of all
such Indebtedness incurred pursuant to this Section 8.03(c) for all such Persons
taken together shall not exceed $20,000,000 at any one time outstanding (ii) such
Indebtedness when incurred by Borrower or any of its Subsidiaries (or, in the case of an
assumption in connection with a Permitted Acquisition, at the time incurred by the target of
such Permitted Acquisition) shall not exceed the purchase price of the asset(s) financed and
(iii) no such Indebtedness shall be refinanced for a principal amount in excess of the
principal balance outstanding thereon at the time of such refinancing;




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




     (e) intercompany Indebtedness permitted under Section 8.02;




     (f) Indebtedness under the Senior Note Documents, and renewals, refinancings and
extensions thereof to the extent permitted under Section 8.12;




     (g) Indebtedness in respect of letters of credit;




     (h) Indebtedness assumed in connection with a Permitted Acquisition in an aggregate
principal amount not to exceed $10,000,000 at any time outstanding;




     (i) performance bonds and surety bonds incurred in the ordinary course of business;




     (j) other unsecured Indebtedness in an aggregate principal amount not to exceed
$15,000,000 at any time;




     (k) Indebtedness secured by real property (other than any satellite manufacturing
facility) owned by the Borrower or any Subsidiary, and renewals, refinancings and extensions
thereof, provided that (i) such Indebtedness when incurred by Borrower or any
Subsidiary (or, in the case of an assumption in connection with a Permitted Acquisition, at
the time incurred by the target of such Permitted Acquisition) shall not exceed the fair
market value of the applicable real property at the time of such incurrence and (ii) no such
Indebtedness shall be refinanced for a principal amount in excess of the fair market value
of the applicable real property at the time of such refinancing; and




     (l) Guarantees with respect to Indebtedness permitted under this Section 8.03.



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     8.04 Fundamental Changes.



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



     8.05 Dispositions.



     Make any Disposition unless (a) at least seventy-five percent (75%) of the consideration paid
in connection therewith shall be cash or cash equivalents that is received contemporaneous with the
consummation of such Disposition and the total consideration paid shall be in an amount not less
than the fair market value (as reasonably determined by the Borrower) of the Property disposed of,
(b) if such transaction is a Sale and Leaseback Transaction, such transaction is not prohibited by
the terms of Section 8.15, (c) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to other Property
concurrently being disposed of in a transaction otherwise permitted under this Section 8.05
or receivables that are being sold because the selling party reasonably believes that such
receivables will be difficult or expensive to collect, and (d) the aggregate net book value of all
of the assets sold or otherwise disposed of by the Borrower and its Subsidiaries in all
Dispositions in any fiscal year of the Borrower shall not exceed $5,000,000.



     8.06 Restricted Payments.



     Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except that:




     (a) the Borrower may make Restricted Payments, provided that (i) no Default
shall exist on the date of such Restricted Payment and (ii) the Borrower shall have
delivered to the Administrative Agent a certificate of a Responsible Officer of the Borrower
demonstrating that, upon giving effect on a Pro Forma Basis to such Restricted Payment, the
Loan Parties would be in compliance with the financial covenants set forth in Section
8.11 as of the most recent fiscal quarter end for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b);




     (b) the Borrower may repurchase Capital Stock of the Borrower issued to employees and
directors of the Borrower in an amount necessary to satisfy such individual’s income tax
withholding obligations relating to the vesting of any restricted stock grants that have
been approved by the Borrower’s Board of Directors or the appropriate committee thereof; and



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     (c) the Borrower may repurchase Capital Stock of the Borrower issued to employees,
directors or managers upon the death, disability or termination of employment of such person
or pursuant to the terms of any subscription, stockholder or other agreement or plan
approved by the Borrower’s Board of Directors in an aggregate amount not to exceed (i)
$500,000 in any fiscal year or (ii) $2,000,000 during the term of this Agreement.



     8.07 Change in Nature of Business.



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



     8.08 Transactions with Affiliates and Insiders.



     Enter into or permit to exist any transaction or series of transactions with any officer,
director or Affiliate of such Person other than (a) transactions between Loan Parties, (b)
intercompany transactions expressly permitted by Section 8.02, Section 8.03,
Section 8.04, Section 8.05 or Section 8.06, (c) reasonable compensation and
reimbursement of expenses of officers and directors and (d) except as otherwise specifically
limited in this Agreement, other transactions which are entered into in the ordinary course of such
Person’s business on terms and conditions substantially as favorable to such Person as would be
obtainable by it in a comparable arms-length transaction with a Person other than an officer,
director or Affiliate.



     8.09 Burdensome Agreements.



     Enter into or permit to exist any Contractual Obligation that encumbers or restricts the
ability of any such Person to (a) pay dividends or make any other distributions to any Loan Party
on its Capital Stock or with respect to any other interest or participation in, or measured by, its
profits, (b) pay any Indebtedness or other obligation owed to any Loan Party, (c) make loans or
advances to any Loan Party, (d) sell, lease or transfer any of its Property to any Loan Party, (e)
pledge its Property pursuant to the Loan Documents or any renewals, refinancings, exchanges,
refundings or extension thereof or (f) act as a Loan Party pursuant to the Loan Documents or any
renewals, refinancings, exchanges, refundings or extension thereof, except (in respect of any of
the matters referred to in clauses (a)-(e) above) for (i) this Agreement and the other Loan
Documents, (ii) any document or instrument governing Indebtedness (A) permitted pursuant to
Section 8.03(b), (B) incurred pursuant to Section 8.03(c), provided that
any such restriction contained therein relates only to the Property financed thereby, or (C)
incurred pursuant to Section 8.03(j), provided that any such restriction therein does not
relate to the Collateral, inventory or the proceeds thereof, (iii) any Permitted Lien or any
document or instrument governing any Permitted Lien, provided that any such restriction
contained therein relates only to the asset or assets subject to such Permitted Lien, (iv)
customary restrictions and conditions contained in any agreement relating to the sale of any
Property permitted under Section 8.05 pending the consummation of such sale, (v)
non-assignability provisions in contracts entered into in the ordinary course of business, (vi)
restrictions on transfer of the Capital Stock of Subsidiaries that prohibit transfers in
contravention of applicable securities laws, (vii) restrictions on the pledge of interests in any
joint venture that is not a Subsidiary contained in the applicable joint venture agreement and
(viii) the Senior Note Documents.



     8.10 Use of Proceeds.



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



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     8.11 Financial Covenants.



     (a) Consolidated Total Leverage Ratio. Permit the Consolidated Total Leverage Ratio
as of the end of any fiscal quarter of the Borrower to be greater than 3.00:1.0.



     (b) Consolidated Senior Secured Leverage Ratio. Permit the Consolidated Senior
Secured Leverage Ratio as of the end of any fiscal quarter of the Borrower to be greater than
1.50:1.0.



     (c) Consolidated Net Worth. Permit Consolidated Net Worth as of the end of any fiscal
quarter of the Borrower to be less than an amount equal to the sum of (i) $123 million,
plus (ii) on a cumulative basis as of the end of each fiscal quarter of the Borrower,
commencing with the fiscal quarter ending December 31, 2004, an amount equal to 50% of Consolidated
Net Income (to the extent positive (it being understood that there shall be no deduction for
losses)) for the fiscal quarter then ended plus (iii) 100% of the proceeds of all Equity
Issuances after the Closing Date.



     (d) Consolidated Fixed Charges Coverage Ratio. Permit the Consolidated Fixed Charges
Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 1.50:1.0.



     (e) Consolidated Asset Coverage Ratio. Permit the Consolidated Asset Coverage Ratio
at any time to be less than 1.33:1.0.



     8.12 Senior Note Documents; Repurchase of Senior Notes.



     (a) Amend or modify any of the terms of any of the Senior Note Documents if such amendment or
modification would (i) increase the principal amount thereof to more than $200 million or (ii) add
or change any terms in a manner materially adverse to the Borrower or such Subsidiary (including
any amendment or modification that would shorten the final maturity or average life to maturity or
require any payment to be made sooner than originally scheduled or increase the interest rate
applicable thereto).



     (b) Make (or give any notice with respect thereto) any voluntary or optional prepayment,
redemption, defeasance or acquisition for value of (including without limitation, by way of
depositing money or securities with the trustee with respect thereto before due for the purpose of
paying when due), or refund, refinance or exchange of any Senior Notes other than:




     (i) regularly scheduled payments of principal and interest;




     (ii) the repurchase of up to 35% of the aggregate principal amount of the Senior Notes
with the net cash proceeds of any public offering of the Borrower’s common stock within
ninety (90) days of such public offering, to the extent permitted under the Senior Note
Indenture;




     (iii) the repurchase of the Senior Notes with cash on hand of the Borrower and its
Subsidiaries, provided that, immediately after giving effect to such repurchase, the
outstanding principal amount of Loans shall be zero and the Borrower shall have on hand at
least $10,000,000 in cash and Cash Equivalents; and




     (iv) the refinancing or replacement of the Senior Notes, provided that (A) such
refinancing shall be in a principal amount of not more than $200 million and (B) the terms
of such refinancing shall not be materially less favorable to the Borrower and its
Subsidiaries than the terms of the Senior Note Documents in effect on the date of such
refinancing (it being understood that the terms of such refinancing shall not (x) increase
the interest rate or fees



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(excluding any arrangement, underwriting, trustee or similar fees) applicable to the
Senior Notes, (y) have a maturity of not earlier than six (6) months following the Maturity
Date, require any amortization of principal of the Senior Notes or otherwise require any
payment of principal on the Senior Notes sooner than six (6) months following the Maturity
Date or (z) contain any covenant or default that is more restrictive in a manner materially
adverse to the Borrower and its Subsidiaries than the covenants and defaults contained in
the Senior Note Documents on the date of such refinancing).



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



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



     (b) Change its fiscal year without thirty (30) days prior written notice to the Administrative
Agent.



     (c) Unless otherwise approved by the Administrative Agent in writing, without providing thirty
(30) days prior written notice to the Administrative Agent, change the name, state of formation or
form of organization of any Loan Party.



     8.14 Ownership of Subsidiaries.



     Notwithstanding any other provisions of this Agreement to the contrary, (i) create, incur,
assume or suffer to exist any Lien on any Capital Stock of any Subsidiary, except for Permitted
Liens or (ii) permit any Subsidiary to issue any shares of preferred Capital Stock to any Person
other than the Borrower or any Subsidiary.



     8.15 Sale and Leaseback Transactions.



     Enter into or permit to exist any Sale and Leaseback Transaction, other than (i) those Sale
and Leaseback Transactions existing on the Closing Date and described on Schedule 8.15 and
(ii) to the extent the Attributable Indebtedness is permitted under Section 8.03(c).



ARTICLE IX




EVENTS OF DEFAULT AND REMEDIES




     9.01 Events of Default.



     Any of the following shall constitute an Event of Default:




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




     (b) Specific Covenants.



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     (i) Any Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.01, 7.02 or 7.05(a) and such
failure continues for five days; or




     (ii) Any Loan Party fails to perform or observe any term, covenant or agreement
contained in any of Section 7.03, 7.10, 7.11,
7.12(b), or Article VIII; or




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




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




     (e) Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder
and Indebtedness under Swap Contracts) having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under
any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B)
fails to observe or perform any other agreement or condition relating to any such
Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing
or relating thereto, or any other event (other than an Involuntary Disposition which is
covered by independent third-party insurance as to which the insurer does not dispute
coverage and which does not constitute a default) occurs, the effect of which default or
other event is (x) to cause, or to permit the holder or holders of such Indebtedness or the
beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise) or such Guarantee to become
payable or cash collateral in respect thereof to be demanded, or (y) to require, or to
permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of
such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to require, an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any
event of default under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract), (B) any Termination Event (as defined
in such Swap Contract but excluding any Termination Event arising from an Illegality (as
defined in such Swap Contract) or Tax Event (as defined in such Swap Contract)) as to which
the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is
greater than the Threshold Amount or (C) any Termination Event (as defined in such Swap
Contract) arising from an Illegality (as defined in such Swap Contract) or Tax Event (as
defined in such Swap Contract)) as to which the Borrower or any Subsidiary is an Affected
Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than $10 million; or



67









 






     (f) Insolvency Proceedings, Etc. Any Loan Party institutes or consents to the
institution of any proceeding under any Debtor Relief Law, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for
all or any material part of its Property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for sixty (60)
calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or
to all or any material part of its Property is instituted without the consent of such Person
and continues undismissed or unstayed for sixty calendar days, or an order for relief is
entered in any such proceeding; or




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




     (h) Judgments. There is entered against any Loan Party one or more final
judgments or orders for the payment of money in an aggregate amount exceeding the Threshold
Amount (to the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) and the same shall not be stayed, bonded or discharged
within sixty (60) days; or




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




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




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



     9.02 Remedies Upon Event of Default.



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




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




     (b) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan



68









 






Document to be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the Borrower;




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




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



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



Notwithstanding the foregoing, as between the Administrative Agent and the Lenders, the
Administrative Agent agrees that it will not foreclose on, or otherwise exercise remedies with
respect to, any Mortgage Instrument unless the Administrative Agent has received environmental
reports for the real property subject to such Mortgage Instrument disclosing no environmental
liabilities with respect to such real property or, if any such environmental liabilities are
disclosed, such liabilities shall be reasonably satisfactory to all of the Lenders. The foregoing
sentence is an agreement solely between the Administrative Agent and the Lenders and is not
intended to, and does not, convey any rights or benefits to any Loan Party.



     9.03 Application of Funds.



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




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




Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders (including
Attorney Costs and amounts payable under Article III), ratably among them in
proportion to the amounts described in this clause Second payable to them;




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




Fourth, to payment of that portion of the Obligations constituting unpaid principal
of the Loans and L/C Borrowings and breakage, termination or other payments, and any
interest accrued



69









 






thereon, due under any Swap Contract between any Loan Party and any Lender, or any Affiliate
of a Lender, to the extent such Swap Contract is permitted by Section 8.03(d), and to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of
Letters of Credit, ratably among the Lenders (and, in the case of such Swap Contracts,
Affiliates of Lenders) in proportion to the respective amounts described in this clause
Fourth held by them; and




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



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



ARTICLE X




ADMINISTRATIVE AGENT




     10.01 Appointment and Authorization of Administrative Agent.



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



     (b) The L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and the L/C Issuer shall have all of the
benefits and immunities (i) provided to the Administrative Agent in this Article X with
respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of
Credit issued by it or proposed to be issued by it and the applications and agreements for letters
of credit pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as
used in this Article X included the L/C Issuer (including, where applicable, each Related
Party of the L/C Issuer) with respect to such acts or omissions, and (ii) as additionally provided
herein with respect to the L/C Issuer.



     10.02 Delegation of Duties.



     The Administrative Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel



70









 





and other consultants or experts concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful misconduct.



     10.03 Liability of Administrative Agent.



     Neither the Administrative Agent nor any of its Related Parties shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with this Agreement or
any other Loan Document or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct), or (b) be responsible in any manner to any Lender or participant
for any recital, statement, representation or warranty made by any Loan Party or any officer
thereof, contained herein or in any other Loan Document, or in any certificate, report, statement
or other document referred to or provided for in, or received by the Administrative Agent under or
in connection with, this Agreement or any other Loan Document, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or for any
failure of any Loan Party or any other party to any Loan Document to perform its obligations
hereunder or thereunder. Neither the Administrative Agent nor any of its Related Parties shall be
under any obligation to any Lender or participant to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this Agreement or any other
Loan Document, or to inspect the properties, books or records of any Loan Party or any Affiliate
thereof.



     10.04 Reliance by Administrative Agent.



     (a) The Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution, representation, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message, electronic mail
message, statement or other document or conversation believed by it to be genuine and correct and
to have been signed, sent or made by the proper Person or Persons, and upon advice and statements
of legal counsel (including counsel to any Loan Party), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under any Loan Document unless it shall first receive such advice or
concurrence of the Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or consent of the
Required Lenders (or such greater number of Lenders as may be expressly required hereby in any
instance) and such request and any action taken or failure to act pursuant thereto shall be binding
upon all the Lenders.



     (b) For purposes of determining compliance with the conditions specified in Section
5.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved
or accepted or to be satisfied with, each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative
Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.



     10.05 Notice of Default.



     The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default, except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the Borrower referring to
this Agreement, describing such



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Default and stating that such notice is a “notice of default.” The Administrative Agent will
notify the Lenders of its receipt of any such notice. The Administrative Agent shall take such
action with respect to such Default as may be directed by the Required Lenders in accordance with
Article IX; provided, however, that unless and until the Administrative
Agent has received any such direction, the Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.



     10.06 Credit Decision; Disclosure of Information by Administrative Agent.



     Each Lender acknowledges that neither the Administrative Agent nor any of its Related Parties
has made any representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or review of the affairs
of any Loan Party or any Affiliate thereof, shall be deemed to constitute any representation or
warranty by the Administrative Agent or any of its Related Parties to any Lender as to any matter,
including whether the Administrative Agent or any of its Related Parties has disclosed material
information in their possession. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any of its Related Parties and
based on such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, and all applicable bank or
other regulatory Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower and the other Loan Parties
hereunder. Each Lender also represents that it will, independently and without reliance upon the
Administrative Agent or any of its Related Parties and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement and the other Loan Documents, and to
make such investigations as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the Borrower and the
other Loan Parties. Except for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent herein, the Administrative Agent shall not
have any duty or responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective Affiliates which may come
into the possession of the Administrative Agent or any of its Related Parties.



     10.07 Indemnification of Administrative Agent.



     To the extent that the Borrower for any reason fails to indefeasibly pay any amount required
under Section 11.04 and Section 11.05 to be paid by it to the Administrative Agent
(or any sub-agent thereof), the L/C Issuer or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer
or such Related Party, as the case may be, such Lender’s Pro Rata Share (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount,
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the Administrative Agent
(or any such sub-agent) or the L/C Issuer in its capacity as such, or against any Related Party of
any of the foregoing acting for the Administrative Agent (or any such sub-agent) or L/C Issuer in
connection with such capacity. The obligations of the Lenders under this Section 10.07 are
subject to the provisions of Section 2.12(f).



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     10.08 Administrative Agent in its Individual Capacity.



     Bank of America and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with each of the Loan Parties and their
respective Affiliates as though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive information regarding any Loan
Party or its Affiliates (including information that may be subject to confidentiality obligations
in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall
be under no obligation to provide such information to them. With respect to its Loans, Bank of
America shall have the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Administrative Agent or the L/C Issuer,
and the terms “Lender” and “Lenders” include Bank of America in its individual capacity.



     10.09 Successor Administrative Agent.



     The Administrative Agent may resign as Administrative Agent upon thirty days’ notice to the
Lenders; provided that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer and Swing Line Lender. If the Administrative Agent resigns under this
Agreement, the Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders, which successor administrative agent shall be consented to by the Borrower
at all times other than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). If no successor administrative agent is appointed
prior to the effective date of the resignation of the Administrative Agent, the Administrative
Agent may appoint, after consulting with the Lenders and the Borrower, a successor administrative
agent from among the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, the Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent, L/C Issuer and Swing Line Lender
and the respective terms “Administrative Agent”, “L/C Issuer” and “Swing Line Lender” shall mean
such successor administrative agent, Letter of Credit issuer and swing line lender, and the
retiring Administrative Agent’s appointment, powers and duties as Administrative Agent shall be
terminated and the retiring L/C Issuer’s and Swing Line Lender’s rights, powers and duties as such
shall be terminated, without any other or further act or deed on the part of such retiring L/C
Issuer or Swing Line Lender or any other Lender, other than the obligation of the successor L/C
Issuer to issue letters of credit in substitution for the Letters of Credit, if any, outstanding at
the time of such succession or to make other arrangements satisfactory to the retiring L/C Issuer
to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of
Credit. After any retiring Administrative Agent’s resignation hereunder as Administrative Agent,
the provisions of this Article X and Sections 11.04 and 11.05 shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date thirty days following a retiring Administrative Agent’s notice of
resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as provided for above.



     10.10 Administrative Agent May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative
to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or
L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the



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Administrative Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in order to
have the claims of the Lenders and the Administrative Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other amounts due the
Lenders and the Administrative Agent under Sections 2.03(i) and (j),
2.09 and 11.04) allowed in such judicial proceeding; and




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



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



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



     10.11 Collateral and Guaranty Matters.



     The Lenders irrevocably authorize the Administrative Agent, at its option and in its
discretion,




     (a) to release any Lien on any Collateral granted to or held by the Administrative
Agent under any Loan Document (i) upon termination of the Aggregate Revolving Commitments
and payment in full of all Obligations (other than contingent indemnification obligations)
and the expiration or termination of all Letters of Credit, (ii) that is transferred or to
be transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Involuntary Disposition, or (iii) as approved in accordance
with Section 11.01;




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




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




Upon request by the Administrative Agent or the Borrower at any time, the Required Lenders
will confirm in writing the Administrative Agent’s authority to release or subordinate its
interest in particular types or items of Property, or to release any Guarantor from its
obligations under the Guaranty, pursuant to this Section 10.11.



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     10.12 Other Agents; Arrangers and Managers.



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



ARTICLE XI




MISCELLANEOUS




     11.01 Amendments, Etc.



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




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




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




     (c) reduce the principal of, or the rate of interest specified herein on, any Loan or
L/C Borrowing, or any fees or other amounts payable hereunder or under any other Loan
Document without the written consent of each Lender directly affected thereby;
provided, however, that only the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest at the Default Rate;




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




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



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     (f) except in connection with a Disposition permitted under Section 8.05,
release all or substantially all of the Collateral without the written consent of each
Lender directly affected thereby; or




     (g) release the Borrower or, except in connection with a merger or consolidation
permitted under Section 8.04 or a Disposition permitted under Section 8.05,
any material Guarantor, from its obligations under the Loan Documents without the written
consent of each Lender directly affected thereby;



and, provided further, that (i) except in connection with an increase in the
Aggregate Revolving Commitments pursuant to Section 2.01(b), no amendment, waiver or
consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required
above, affect the rights or duties of the L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter of Credit issued or to be issued by it; (ii) no amendment,
waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the
Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement;
(iii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and (iv) the Fee Letter may be amended, or
rights or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Revolving
Commitment of such Lender may not be increased or extended without the consent of such Lender.



Notwithstanding the fact that the consent of all the Lenders is required in certain circumstances
as set forth above, (x) each Lender is entitled to vote as such Lender sees fit on any bankruptcy
reorganization plan that affects the Loans, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersedes the unanimous consent provisions set forth herein
and (y) the Required Lenders shall determine whether or not to allow a Loan Party to use cash
collateral in the context of a bankruptcy or insolvency proceeding and such determination shall be
binding on all of the Lenders.



     11.02 Notices and Other Communications; Facsimile Copies.



     (a) General. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder shall be in writing (including by facsimile transmission).
All such written notices shall be mailed, faxed or delivered to the applicable address, facsimile
number or (subject to subsection (c) below) electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:




     (i) if to the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, facsimile number, electronic mail address or telephone number
specified for such Person on Schedule 11.02 or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such party in
a notice to the other parties; and




     (ii) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing
Line Lender.



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     All such notices and other communications shall be deemed to be given or made upon the earlier
to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when
sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail (which
form of delivery is subject to the provisions of subsection (c) below), when delivered;
provided, however, that notices and other communications to the Administrative
Agent, the L/C Issuer and the Swing Line Lender pursuant to Article II shall not be
effective until actually received by such Person. In no event shall a voicemail message be
effective as a notice, communication or confirmation hereunder.



     (b) Effectiveness of Facsimile Documents and Signatures. Loan Documents may be
transmitted and/or signed by facsimile. The effectiveness of any such documents and signatures
shall, subject to applicable Law, have the same force and effect as manually signed originals and
shall be binding on all Loan Parties, the Administrative Agent and the Lenders. The Administrative
Agent may also require that any such documents and signatures be confirmed by a manually signed
original thereof; provided, however, that the failure to request or deliver the
same shall not limit the effectiveness of any facsimile document or signature.



     (c) Limited Use of Electronic Mail. Electronic mail and internet and intranet
websites may be used only to distribute routine communications, such as financial statements and
other information as provided in Section 7.02, and to distribute Loan Documents for
execution by the parties thereto, and may not be used for any other purpose.



     (d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Loan Notices and
Swing Line Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices
were not made in a manner specified herein, were incomplete or were not preceded or followed by any
other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.



     11.03 No Waiver; Cumulative Remedies.



     No failure by any Lender or the Administrative Agent to exercise, and no delay by any such
Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



     11.04 Attorney Costs, Expenses and Taxes.



     The Borrower agrees (a) to pay or reimburse the Administrative Agent for all reasonable
out-of-pocket costs and expenses incurred in connection with the development, preparation,
negotiation and execution of this Agreement and the other Loan Documents and any amendment, waiver,
consent or other modification of the provisions hereof and thereof (whether or not the transactions
contemplated hereby or thereby are consummated), and the consummation and administration of the
transactions contemplated hereby and thereby, including all Attorney Costs and costs and expenses
in connection with the use of Intralinks, Inc. or other similar information transmission systems in
connection with this Agreement and (b) to pay or reimburse the Administrative Agent and each Lender
for all costs and expenses incurred in



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connection with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or the other Loan Documents (including all such costs and expenses
incurred during any “workout” or restructuring in respect of the Obligations and during any legal
proceeding, including any proceeding under any Debtor Relief Law), including all Attorney Costs.
The foregoing costs and expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket expenses incurred by
the Administrative Agent and the cost of independent public accountants and other outside experts
reasonably retained by the Administrative Agent or any Lender. All amounts due under this
Section 11.04 shall be payable within ten Business Days after demand therefor. The
agreements in this Section shall survive the termination of the Aggregate Revolving Commitments and
repayment of all other Obligations.



     11.05 Indemnification by the Borrower.



     Whether or not the transactions contemplated hereby are consummated, the Borrower agrees to
indemnify and hold harmless the Administrative Agent (and any sub-agent thereof), the L/C Issuer,
each Lender and the Related Parties of the foregoing Persons (collectively the
“Indemnitees”) from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments and suits, and all reasonable and actual costs,
expenses and disbursements (including Attorney Costs), which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or arising out of or in
connection with (a) the execution, delivery, enforcement, performance or administration of any Loan
Document or any other agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated thereby, (b) any
Revolving Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply with the terms of
such Letter of Credit), (c) any civil penalty or fine assessed by the U.S. Department of the
Treasury’s Office of Foreign Assets Control (including all costs and expenses (including Attorney
Costs) incurred in the defense thereof) as a result of the funding of any Credit Extension or the
acceptance of payments due under the Loan Documents, (d) any actual or alleged presence or release
of Hazardous Materials on or from any property currently or formerly owned or operated by the
Borrower, any Subsidiary or any other Loan Party, or any Environmental Liability related in any way
to the Borrower, any Subsidiary or any other Loan Party, or (e) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory (including any investigation of, preparation for, or defense of
any pending or threatened claim, investigation, litigation or proceeding) and regardless of whether
any Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this Agreement, nor shall any
Indemnitee have any liability for any indirect or consequential damages relating to this Agreement
or any other Loan Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). It is understood that if any Lender assigns all or any
part of its interests under this Agreement for a loss (i.e., an amount below par), the indemnity in
this Section 11.05 shall not extend to such loss. All amounts due under this Section
11.05 shall be payable within ten Business Days after demand therefor. The agreements in this
Section shall survive the resignation of the Administrative Agent, the replacement of any Lender,
the termination of the Aggregate Revolving Commitments and the repayment, satisfaction or discharge
of all the other Obligations.



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     11.06 Payments Set Aside.



     To the extent that any payment by or on behalf of any Loan Party is made to the Administrative
Agent or any Lender, or the Administrative Agent or any Lender exercises its right of set-off, and
such payment or the proceeds of such set-off or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from
time to time in effect.



     11.07 Successors and Assigns.



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



     (b) Any Lender may at any time assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of its Revolving
Commitment and the Loans (including for purposes of this subsection (b), participations in L/C
Obligations and in Swing Line Loans) at the time owing to it); provided that (i) except in
the case of an assignment of the entire remaining amount of the assigning Lender’s Revolving
Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender with respect to a Lender, the aggregate amount of the Revolving Commitment
(which for this purpose includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such assignment is
delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and
Assumption, as of the Trade Date, shall not be less than $2,500,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); (ii)
each partial assignment shall be made as an assignment of a proportionate part of all the assigning
Lender’s rights and obligations under this Agreement with respect to the Loans or the Revolving
Commitment assigned, except that this clause (ii) shall not apply to rights in respect of Swing
Line Loans; (iii) any assignment of a Revolving Commitment must be approved by the Administrative
Agent, the L/C Issuer and the Swing Line Lender unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and (iv) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after



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the effective date specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 3.01, 3.04, 3.05, 11.04 and 11.05 with respect to
facts and circumstances occurring prior to the effective date of such assignment). Upon request,
the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with subsection (d) of this
Section.



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



     (d) Any Lender may at any time, without the consent of, or notice to, the Borrower or the
Administrative Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in
all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or
a portion of its Revolving Commitment and/or the Loans (including such Lender’s participations in
L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s
obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation shall provide that
such Lender shall retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, waiver or other modification described in the first proviso to Section 11.01
that directly affects such Participant. Subject to subsection (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 3.01,
3.04 and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 11.09 as though it were
a Lender, provided such Participant agrees to be subject to Section 2.13 as though
it were a Lender.



     (e) A Participant shall not be entitled to receive any greater payment under Section
3.01 or 3.04 than the applicable Lender would have been entitled to receive with
respect to the participation sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01
unless the Borrower is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 11.15 as though it were a
Lender.



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



     (g) Notwithstanding anything to the contrary contained herein, if at any time Bank of America
assigns all of its Revolving Commitment and Loans pursuant to subsection (b) above, Bank of America
may, (i) upon thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii)
upon thirty days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided,
however, that no failure by the Borrower to appoint any such successor shall affect the
resignation of Bank of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of
America resigns as L/C Issuer, it shall retain all the rights and obligations of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall
retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line
Loans made by it and outstanding as of the effective date of such resignation, including the right
to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing
Line Loans pursuant to Section 2.04(c).



     11.08 Confidentiality.



     Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and must agree to keep such Information
confidential); (b) to the extent requested by any regulatory authority; (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other
party to this Agreement; (e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights hereunder; (f) subject
to an agreement containing provisions substantially the same as those of this Section, to (i) any
Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or Participant in,
any of its rights or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty’s or prospective
counterparty’s professional advisor) to any credit derivative transaction relating to obligations
of the Loan Parties; (g) with the consent of the Borrower; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent or any Lender on a nonconfidential basis from a source other
than the Borrower; or (i) to the National Association of Insurance Commissioners or any other
similar organization or any nationally recognized rating agency that requires access to information
about a Lender’s or its Affiliates’ investment portfolio in connection with ratings issued with
respect to such Lender or its Affiliates. In addition, the Administrative Agent and the Lenders
may disclose the existence of this Agreement and information about this Agreement to market data
collectors, similar service providers to the lending industry, and service providers to the
Administrative Agent and the Lenders in connection with the administration and management of this
Agreement, the other Loan Documents, the Revolving Commitments, and the Credit Extensions. For the
purposes of this Section, “Information” means all information received from any Loan Party
relating to any Loan Party or its business, other than any such information that is available to
the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by any Loan
Party;



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provided that, in the case of information received from a Loan Party after the date
hereof, such information is clearly identified in writing at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would accord
to its own confidential information.



     11.09 Set-off.



     In addition to any rights and remedies of the Lenders provided by law, upon the occurrence and
during the continuance of any Event of Default, with the prior consent of the Administrative Agent,
each Lender and any Affiliate of a Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being waived by the Borrower
(on its own behalf and on behalf of each Loan Party) to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand, provisional or final) at
any time held by, and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing to such Lender
hereunder or under any other Loan Document, now or hereafter existing, irrespective of whether or
not the Administrative Agent or such Lender shall have made demand under this Agreement or any
other Loan Document and although such Obligations may be contingent or unmatured or denominated in
a currency different from that of the applicable deposit or indebtedness. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice shall
not affect the validity of such set-off and application.



     11.10 Interest Rate Limitation.



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



     11.11 Counterparts.



     This Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same instrument.



     11.12 Integration.



     This Agreement, together with the other Loan Documents, comprises the complete and integrated
agreement of the parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the provisions of this Agreement
shall control; provided that the inclusion of supplemental rights or remedies in favor of
the Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.



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     11.13 Survival of Representations and Warranties.



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



     11.14 Severability.



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



     11.15 Tax Forms.




     (a) (i) Each Lender that is not a “United States person” within the meaning of Section
7701(a)(30) of the Internal Revenue Code (a “Foreign Lender”) shall deliver to the
Administrative Agent, prior to receipt of any payment subject to withholding under the
Internal Revenue Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN or any successor thereto (relating to such
Foreign Lender and entitling it to an exemption from, or reduction of, withholding tax on
all payments to be made to such Foreign Lender by the Borrower pursuant to this Agreement)
or IRS Form W-8ECI or any successor thereto (relating to all payments to be made to such
Foreign Lender by the Borrower pursuant to this Agreement) or such other evidence
satisfactory to the Borrower and the Administrative Agent that such Foreign Lender is
entitled to an exemption from, or reduction of, U.S. withholding tax, including any
exemption pursuant to Section 881(c) of the Internal Revenue Code. Thereafter and from time
to time, each such Foreign Lender shall (A) promptly submit to the Administrative Agent such
additional duly completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing authorities) as may
then be available under then current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrower and the Administrative Agent of any available
exemption from or reduction of, United States withholding taxes in respect of all payments
to be made to such Foreign Lender by the Borrower pursuant to this Agreement, (B) promptly
notify the Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (C) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the Borrower make any deduction or withholding for taxes
from amounts payable to such Foreign Lender.




     (ii) Each Foreign Lender, to the extent it does not act or ceases to act for its own
account with respect to any portion of any sums paid or payable to such Lender under any of
the



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Loan Documents (for example, in the case of a typical participation by such Lender),
shall deliver to the Administrative Agent on the date when such Foreign Lender ceases to act
for its own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative Agent (in
the reasonable exercise of its discretion), (A) two duly signed completed copies of the
forms or statements required to be provided by such Lender as set forth above, to establish
the portion of any such sums paid or payable with respect to which such Lender acts for its
own account that is not subject to U.S. withholding tax, and (B) two duly signed completed
copies of IRS Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or statement of
exemption required under the Internal Revenue Code, to establish that such Lender is not
acting for its own account with respect to a portion of any such sums payable to such
Lender.




     (iii) The Borrower shall not be required to pay any additional amount to any Foreign
Lender under Section 3.01 (A) with respect to any Taxes required to be deducted or
withheld on the basis of the information, certificates or statements of exemption such
Lender transmits with an IRS Form W-8IMY pursuant to this Section 11.15(a) or (B) if
such Lender shall have failed to satisfy the foregoing provisions of this Section
11.15(a); provided that if such Lender shall have satisfied the requirement of
this Section 11.15(a) on the date such Lender became a Lender or ceased to act for
its own account with respect to any payment under any of the Loan Documents, nothing in this
Section 11.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to Section 3.01 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or any change in the
interpretation, administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date establishing
the fact that such Lender or other Person for the account of which such Lender receives any
sums payable under any of the Loan Documents is not subject to withholding or is subject to
withholding at a reduced rate.




     (iv) The Administrative Agent may, without reduction, withhold any Taxes required to be
deducted and withheld from any payment under any of the Loan Documents with respect to which
the Borrower is not required to pay additional amounts under this Section 11.15(a).



     (b) Upon the request of the Administrative Agent, each Lender that is a “United States person”
within the meaning of Section 7701(a)(30) of the Internal Revenue Code shall deliver to the
Administrative Agent two duly signed completed copies of IRS Form W-9. If such Lender fails to
deliver such forms, then the Administrative Agent may withhold from any interest payment to such
Lender an amount equivalent to the applicable back-up withholding tax imposed by the Internal
Revenue Code, without reduction.



     (c) If any Governmental Authority asserts that the Administrative Agent did not properly
withhold or backup withhold, as the case may be, any tax or other amount from payments made to or
for the account of any Lender, such Lender shall indemnify the Administrative Agent therefor,
including all penalties and interest, any taxes imposed by any jurisdiction on the amounts payable
to the Administrative Agent under this Section, and costs and expenses (including Attorney Costs)
of the Administrative Agent. The obligation of the Lenders under this Section shall survive the
termination of the Aggregate Revolving Commitments, repayment of all other Obligations hereunder
and the resignation of the Administrative Agent.



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     11.16 Replacement of Lenders.



     Under any circumstances set forth herein providing that the Borrower shall have the right to
replace a Lender as a party to this Agreement and in the case of a refusal by a Lender to consent
to a proposed change, waiver, discharge or termination with respect to this Agreement or any other
Loan Document that has been approved by the Required Lenders (or, in the event there are only two
Lenders party to this Agreement, approved by the Lender that is also the Administrative Agent), the
Borrower may, upon notice to such Lender and the Administrative Agent, replace such Lender by
causing such Lender to assign its Revolving Commitment and outstanding Loans (with the assignment
fee to be paid by the Borrower in such instance) pursuant to Section 11.07(b) to one or
more other Lenders or Eligible Assignees procured by the Borrower The Borrower shall (x) pay in
full all principal, accrued interest, accrued fees and other amounts owing to such Lender through
the date of replacement (including any amounts payable pursuant to Section 3.05), (y)
provide appropriate assurances and indemnities (which may include letters of credit) to the L/C
Issuer and the Swing Line Lender as each may reasonably require with respect to any continuing
obligation to fund participation interests in any L/C Obligations or any Swing Line Loans then
outstanding, and (z) release such Lender from its obligations under the Loan Documents. Any Lender
being replaced shall execute and deliver an Assignment and Assumption with respect to such Lender’s
Revolving Commitment and outstanding Loans and participations in L/C Obligations and Swing Line
Loans; provided that, the failure by such replaced Lender to execute and deliver an
Assignment and Assumption shall not impair the validity of the removal of such replaced Lender and
the mandatory assignment of a replaced Lender’s Revolving Commitment and outstanding Loans and
participations in L/C Obligations and Swing Line Loans pursuant to this Section 11.16 shall
nevertheless be effective without the execution by such replaced Lender of an Assignment and
Assumption.



     11.17 Release of Collateral and Guarantees.



     The Administrative Agent hereby agrees with the Borrower that the Administrative Agent shall,
upon the request of the Borrower:




     (a) release any Lien on any Collateral granted to or held by the Administrative Agent
under any Loan Document (i) upon termination of the Aggregate Revolving Commitments and
payment in full of all Obligations (other than contingent indemnification obligations) and
the expiration or termination of all Letters of Credit, (ii) that is transferred or to be
transferred as part of or in connection with any Disposition permitted hereunder or under
any other Loan Document or any Involuntary Disposition, or (iii) as approved in accordance
with Section 11.01;




     (b) subordinate any Lien on any Property granted to or held by the Administrative Agent
under any Loan Document to the holder of any Lien on such Property that is permitted by
Section 8.03(c); and




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



     11.18 Governing Law.



     (a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT THE ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.



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     (b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK, NEW YORK, OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER, THE
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO
THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER
WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY THE LAW OF SUCH STATE.



     11.19 Waiver of Right to Trial by Jury.



     EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



[SIGNATURE PAGES FOLLOW]




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



	 	 	 	 	 	 	 
	BORROWER:	 	ORBITAL SCIENCES CORPORATION,
	 	 	a Delaware corporation
	 
	 	 	 	 	 	 
	

	 	By:	 	 /s/ Michael R. Williams	 	 
	

	 	 	 	 	 	 
	

	 	Name:	 	 Michael R. Williams	 	 
	

	 	Title:	 	 Senior Vice President and
Treasurer	 	 
	 
	 	 	 	 	 	 
	ADMINISTRATIVE AGENT:	 	BANK OF AMERICA, N.A., as Administrative Agent
	 
	 	 	 	 	 	 
	

	 	By:	 	 /s/ Anne M. Zeschke	 	 
	

	 	 	 	 	 	 
	

	 	Name:
	 	 Anne M. Zeschke	 	 
	

	 	Title:
	 	 Assistant Vice President	 	 
	 
	 	 	 	 	 	 
	LENDERS:	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and Swing Line Lender
	 
	 	 	 	 	 	 
	

	 	By:	 	 /s/ Michael J. Landini	 	 
	

	 	 	 	 	 	 
	

	 	Name:
	 	 Michael J. Landini	 	 
	

	 	Title:
	 	 Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WACHOVIA BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 	 	 
	

	 	By:	 	 /s/ Robert G. McGill, Jr.	 	 
	

	 	 	 	 	 	 
	

	 	Name:	 	 Robert G. McGill, Jr.	 	 
	

	 	Title:	 	 Director	 	 
	 
	 	 	 	 	 	 
	 	 	FIRST HORIZON BANK, A DIVISION OF FIRST TENNESSEE BANK NA
	 
	 	 	 	 	 	 
	

	 	By:	 	 /s/ Gill H. Waller	 	 
	

	 	 	 	 	 	 
	

	 	Name:	 	 Gill H. Waller	 	 
	

	 	Title:	 	 Senior Vice President