Exhibit 10.21


 


CREDIT
AGREEMENT


Dated as of December 19, 2002


among


METHODE
ELECTRONICS, INC.,


as the Borrower,


BANK
OF AMERICA, N.A.,

as Administrative Agent 

and

L/C Issuer,


and


The Other Lenders Party Hereto




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
   

  	
  DEFINITIONS AND
  ACCOUNTING TERMS

  
	
   

  	
   

  	
   

  
	
  1.01.

  	
   

  	
  Defined Terms

  
	
   

  	
   

  	
   

  
	
  1.02.

  	
   

  	
  Other Interpretive
  Provisions

  
	
   

  	
   

  	
   

  
	
  1.03.

  	
   

  	
  Accounting Terms

  
	
   

  	
   

  	
   

  
	
  1.04.

  	
   

  	
  Rounding

  
	
   

  	
   

  	
   

  
	
  1.05.

  	
   

  	
  References to
  Agreements and Laws

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  THE COMMITMENTS
  AND CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  
	
  2.01.

  	
   

  	
  Loans

  
	
   

  	
   

  	
   

  
	
  2.02.

  	
   

  	
  Borrowings, Conversions and Continuations of
  Loans

  
	
   

  	
   

  	
   

  
	
  2.03.

  	
   

  	
  Letters of Credit

  
	
   

  	
   

  	
   

  
	
  2.04.

  	
   

  	
  Prepayments

  
	
   

  	
   

  	
   

  
	
  2.05.

  	
   

  	
  Reduction or
  Termination of Commitments

  
	
   

  	
   

  	
   

  
	
  2.06.

  	
   

  	
  Repayment of Loans

  
	
   

  	
   

  	
   

  
	
  2.07.

  	
   

  	
  Interest

  
	
   

  	
   

  	
   

  
	
  2.08.

  	
   

  	
  Fees

  
	
   

  	
   

  	
   

  
	
  2.09.

  	
   

  	
  Computation of
  Interest and Fees

  
	
   

  	
   

  	
   

  
	
  2.10.

  	
   

  	
  Evidence of Debt

  
	
   

  	
   

  	
   

  
	
  2.11.

  	
   

  	
  Payments Generally

  
	
   

  	
   

  	
   

  
	
  2.12.

  	
   

  	
  Sharing of Payments

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  TAXES, YIELD PROTECTION
  AND ILLEGALITY

  
	
   

  	
   

  	
   

  
	
  3.01.

  	
   

  	
  Taxes

  
	
   

  	
   

  	
   

  
	
  3.02.

  	
   

  	
  Illegality

  
	
   

  	
   

  	
   

  
	
  3.03.

  	
   

  	
  Inability to Determine
  Rates

  
	
   

  	
   

  	
   

  
	
  3.04.

  	
   

  	
  Increased
  Cost and Reduced Return; Capital Adequacy

  
	
   

  	
   

  	
   

  
	
  3.05.

  	
   

  	
  Funding Losses

  
	
   

  	
   

  	
   

  
	
  3.06.

  	
   

  	
  Matters
  Applicable to all Requests for Compensation

  
	
   

  	
   

  	
   

  
	
  3.07.

  	
   

  	
  Survival

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  CONDITIONS
  PRECEDENT TO CREDIT EXTENSIONS

  
	
   

  	
   

  	
   

  
	
  4.01.

  	
   

  	
  Conditions of
  Initial Credit Extension

  
	
   

  	
   

  	
   

  
	
  4.02.

  	
   

  	
  Conditions to all
  Credit Extensions

  
	
   

  	
   

  	
   

  



 


i

















 


	
  ARTICLE V

  	
   

  	
  REPRESENTATIONS AND
  WARRANTIES

  
	
   

  	
   

  	
   

  
	
  5.01.

  	
   

  	
  Existence,
  Qualification and Power; Compliance with Laws

  
	
   

  	
   

  	
   

  
	
  5.02.

  	
   

  	
  Authorization; No Contravention

  
	
   

  	
   

  	
   

  
	
  5.03.

  	
   

  	
  Governmental Authorization

  
	
   

  	
   

  	
   

  
	
  5.04.

  	
   

  	
  Binding Effect

  
	
   

  	
   

  	
   

  
	
  5.05.

  	
   

  	
  Financial Statements; No Material
  Adverse Effect

  
	
   

  	
   

  	
   

  
	
  5.06.

  	
   

  	
  Litigation

  
	
   

  	
   

  	
   

  
	
  5.07.

  	
   

  	
  No
  Default

  
	
   

  	
   

  	
   

  
	
  5.08.

  	
   

  	
  Ownership of Property; Liens

  
	
   

  	
   

  	
   

  
	
  5.09.

  	
   

  	
  Environmental Compliance

  
	
   

  	
   

  	
   

  
	
  5.10.

  	
   

  	
  Insurance

  
	
   

  	
   

  	
   

  
	
  5.11.

  	
   

  	
  Taxes

  
	
   

  	
   

  	
   

  
	
  5.12.

  	
   

  	
  ERISA Compliance

  
	
   

  	
   

  	
   

  
	
  5.13.

  	
   

  	
  Subsidiaries

  
	
   

  	
   

  	
   

  
	
  5.14.

  	
   

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

  
	
   

  	
   

  	
   

  
	
  5.15.

  	
   

  	
  Disclosure

  
	
   

  	
   

  	
   

  
	
  5.16.

  	
   

  	
  Intellectual Property; Licenses,
  Etc

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  6.01.

  	
   

  	
  Financial
  Statements

  
	
   

  	
   

  	
   

  
	
  6.02.

  	
   

  	
  Certificates; Other Information

  
	
   

  	
   

  	
   

  
	
  6.03.

  	
   

  	
  Notices

  
	
   

  	
   

  	
   

  
	
  6.04.

  	
   

  	
  Payment of Obligations

  
	
   

  	
   

  	
   

  
	
  6.05.

  	
   

  	
  Preservation of Existence,
  Etc

  
	
   

  	
   

  	
   

  
	
  6.06.

  	
   

  	
  Maintenance of Properties

  
	
   

  	
   

  	
   

  
	
  6.07.

  	
   

  	
  Maintenance of Insurance

  
	
   

  	
   

  	
   

  
	
  6.08.

  	
   

  	
  Compliance with Laws

  
	
   

  	
   

  	
   

  
	
  6.09.

  	
   

  	
  Books and Records

  
	
   

  	
   

  	
   

  
	
  6.10.

  	
   

  	
  Inspection Rights

  
	
   

  	
   

  	
   

  
	
  6.11.

  	
   

  	
  Compliance with ERISA

  
	
   

  	
   

  	
   

  
	
  6.12.

  	
   

  	
  Use of Proceeds

  
	
   

  	
   

  	
   

  
	
  6.13.

  	
   

  	
  Guaranty of Domestic
  Subsidiaries

  



 


ii

















 


	
  ARTICLE VII

  	
   

  	
  NEGATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
  7.01.

  	
   

  	
  Liens

  
	
   

  	
   

  	
   

  
	
  7.02.

  	
   

  	
  Investments

  
	
   

  	
   

  	
   

  
	
  7.03.

  	
   

  	
  Indebtedness

  
	
   

  	
   

  	
   

  
	
  7.04.

  	
   

  	
  Fundamental Changes

  
	
   

  	
   

  	
   

  
	
  7.05.

  	
   

  	
  Dispositions

  
	
   

  	
   

  	
   

  
	
  7.06.

  	
   

  	
  Lease Obligations

  
	
   

  	
   

  	
   

  
	
  7.07.

  	
   

  	
  Restricted Payments

  
	
   

  	
   

  	
   

  
	
  7.08.

  	
   

  	
  ERISA

  
	
   

  	
   

  	
   

  
	
  7.09.

  	
   

  	
  Change in Nature of
  Business

  
	
   

  	
   

  	
   

  
	
  7.10.

  	
   

  	
  Transactions with
  Affiliates

  
	
   

  	
   

  	
   

  
	
  7.11.

  	
   

  	
  Burdensome Agreements

  
	
   

  	
   

  	
   

  
	
  7.12.

  	
   

  	
  Use of
  Proceeds

  
	
   

  	
   

  	
   

  
	
  7.13.

  	
   

  	
  Financial Covenants

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
   

  	
  EVENTS OF DEFAULT AND
  REMEDIES

  
	
   

  	
   

  	
   

  
	
  8.01.

  	
   

  	
  Events of Default

  
	
   

  	
   

  	
   

  
	
  8.02.

  	
   

  	
  Remedies Upon Event of
  Default

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
   

  	
  ADMINISTRATIVE AGENT

  
	
   

  	
   

  	
   

  
	
  9.01.

  	
   

  	
  Appointment
  and Authorization of Administrative Agent

  
	
   

  	
   

  	
   

  
	
  9.02.

  	
   

  	
  Delegation of Duties

  
	
   

  	
   

  	
   

  
	
  9.03.

  	
   

  	
  Liability of
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
  9.04.

  	
   

  	
  Reliance by
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
  9.05.

  	
   

  	
  Notice of Default

  
	
   

  	
   

  	
   

  
	
  9.06.

  	
   

  	
  Credit Decision; Disclosure of
  Information by Administrative Agent

  
	
   

  	
   

  	
   

  
	
  9.07.

  	
   

  	
  Indemnification
  of Administrative Agent

  
	
   

  	
   

  	
   

  
	
  9.08.

  	
   

  	
  Administrative
  Agent in its Individual Capacity

  
	
   

  	
   

  	
   

  
	
  9.09.

  	
   

  	
  Successor Administrative
  Agent

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
   

  	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  10.01.

  	
   

  	
  Amendments, Etc

  
	
   

  	
   

  	
   

  
	
  10.02.

  	
   

  	
  Notices and Other
  Communications; Facsimile Copies

  
	
   

  	
   

  	
   

  
	
  10.03.

  	
   

  	
  No
  Waiver; Cumulative Remedies

  



 


iii

















 


	
  10.04.

  	
   

  	
  Attorney Costs, Expenses and Taxes

  
	
   

  	
   

  	
   

  
	
  10.05.

  	
   

  	
  Indemnification by the
  Borrower

  
	
   

  	
   

  	
   

  
	
  10.06.

  	
   

  	
  Payments Set Aside

  
	
   

  	
   

  	
   

  
	
  10.07.

  	
   

  	
  Successors and Assigns

  
	
   

  	
   

  	
   

  
	
  10.08.

  	
   

  	
  Confidentiality

  
	
   

  	
   

  	
   

  
	
  10.09.

  	
   

  	
  Set-off

  
	
   

  	
   

  	
   

  
	
  10.10.

  	
   

  	
  Interest Rate Limitation

  
	
   

  	
   

  	
   

  
	
  10.11.

  	
   

  	
  Counterparts

  
	
   

  	
   

  	
   

  
	
  10.12.

  	
   

  	
  Integration

  
	
   

  	
   

  	
   

  
	
  10.13.

  	
   

  	
  Survival of
  Representations and Warranties

  
	
   

  	
   

  	
   

  
	
  10.14.

  	
   

  	
  Severability

  
	
   

  	
   

  	
   

  
	
  10.15.

  	
   

  	
  Tax
  Forms

  
	
   

  	
   

  	
   

  
	
  10.16.

  	
   

  	
  Governing Law

  
	
   

  	
   

  	
   

  
	
  10.17.

  	
   

  	
  Waiver of Right to
  Trial by Jury

  
	
   

  	
   

  	
   

  
	
  10.18.

  	
   

  	
  Entire Agreement

  



 


iv

















 


	
   

  	
  SCHEDULES

  	 

	
   

  	
  2.01

  	
  Commitments and Pro
  Rata Shares

  	 

	
   

  	
  5.06

  	
  Litigation

  	 

	
   

  	
  5.09

  	
  Environmental Matters

  	 

	
   

  	
  5.13

  	
  Subsidiaries and Other
  Equity Investments

  	 

	
   

  	
  5.16

  	
  Intellectual Property
  Matters

  	 

	
   

  	
  7.01

  	
  Existing Liens

  	 

	
   

  	
  7.02

  	
  Existing Investments

  	 

	
   

  	
  7.03

  	
  Existing Indebtedness

  	 

	
   

  	
  7.06

  	
  Existing Leases

  	 

	
   

  	
  10.02

  	
  Eurodollar and Domestic
  Lending Offices, Addresses for Notices

  	 

	
   

  	
   

  	
   

  	 

	
  EXHIBITS

  
	
   

  	
  Form of

  
	
   

  	
  A

  	
  Borrowing  Notice

  
	
   

  	
  B

  	
  Note

  
	
   

  	
  C

  	
  Compliance Certificate

  
	
   

  	
  D

  	
  Assignment and
  Assumption

  
	
   

  	
  E

  	
  Guaranty

  
	
   

  	
  F

  	
  Opinion of Counsel

  



 


v

















 


CREDIT AGREEMENT


 


This CREDIT AGREEMENT (“Agreement”) is entered into as of
December 19, 2002, among METHODE ELECTRONICS, INC., a Delaware (the “Borrower”),
each lender from time to time party hereto (collectively, the “Lenders”
and individually, a “Lender”), and BANK OF AMERICA, N.A., as
Administrative Agent, and L/C Issuer.


 


The Borrower has requested that the Lenders
provide a revolving credit facility, and the Lenders are willing to do so on
the terms and conditions set forth herein.


 


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


 


DEFINITIONS AND ACCOUNTING TERMS


 


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


“Acquired
Business” means any Person or assets, as the case may be, acquired through
an Acquisition.


“Acquisition”
means any transaction or series of related transactions for the purpose of or
resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any business or division of
a Person, (b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary before giving effect to such merger or consolidation,
provided that the Borrower or the Subsidiary is the surviving entity).


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


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


“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.  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 or managing general
partners.


“Agent-Related
Persons” means the Administrative Agent (including any successor
administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.


“Aggregate
Commitments” has the meaning set forth in the definition of “Commitment.”


“Agreement”
means this Credit Agreement.


“Applicable
Rate” means, from time to time, 1.25% per annum.


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


“Attorney Costs”
means and includes all reasonable fees and disbursements of any law firm or
other external counsel and the reasonable allocated cost (without duplication)
of internal legal services and all disbursements of internal 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, and (b) in
respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a capital lease.


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended April 30, 2002,
and the related consolidated statements of income or operations, shareholders’
equity and cash flows for such fiscal year of the Borrower and its
Subsidiaries.


 

















 


“Bank of
America” means Bank of America, N.A.


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


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


“Borrower”
has the meaning set forth in the introductory paragraph hereto.


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


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


“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.


“Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances 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
shall have corresponding meaning.  The
Borrower hereby grants the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a Lien on all such cash and deposit account
balances.  Cash collateral shall be
maintained in blocked, non-interest bearing deposit accounts at Bank of
America.


“Change of
Control” means, with respect to any Person, an event or series of events by
which:


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 securities that such person or group has the right to acquire
(such right, an “option right”), whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of 25%
or more of the equity securities of such Person entitled to vote for members of
the board of directors or equivalent governing body of such Person on a
partially-diluted basis (i.e., taking into account all such securities
that such person or group has the right to acquire pursuant to any option
right); or


 


during any period of 12
consecutive months, a majority of the members of the board of directors or
other equivalent governing body of such Person 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.


 


“Class B Share
Repurchase” has the meaning set forth in Section 7.07(e).


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


 


2

















 


accordance with Section
4.01 (or, in the case of Section 4.01(b), waived by the Person
entitled to receive the applicable payment).


“Code”
means the Internal Revenue Code of 1986.


“Commitment”
means, as to each Lender, its obligation to (a) make Loans to the Borrower
pursuant to Section 2.01, and (b) purchase participations in L/C
Obligations, 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 amount may be reduced or adjusted from time to time in accordance with
this Agreement (collectively, the “Aggregate Commitments”).


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


“Consolidated
Capital Expenditures” means, as of the last day of any fiscal quarter for
any period, the capital expenditures of the Borrower and its Subsidiaries for
such period, as the same are (or would in accordance with GAAP be) set forth in
the consolidated statement of changes in financial position of the Borrower and
its Subsidiaries for such period.


“Consolidated
EBITDA” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, an amount equal to the sum of (a) Consolidated Net
Income, (b) Consolidated Interest Charges, (c) the amount of taxes, based on or
measured by income, used or included in the determination of such Consolidated Net
Income, and (d) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income.


“Consolidated
Fixed Charge Coverage Ratio” means as of any date of determination, the
ratio of:


(a)  Consolidated EBITDA for the period of
the four fiscal quarters then most recently ended, less (i) Consolidated
Capital Expenditures for such period, less (ii) income and franchise taxes paid
or required to be paid in cash by the Borrower and its Subsidiaries on a
consolidated basis during such period, less (iii) the aggregate of all
dividends of the Borrower paid during such period, less (iv) the aggregate
purchase price paid during such period for all Share Repurchases pursuant to
Section 7.07(e) (excluding Class B Share Repurchases to the extent that the
aggregate purchase price thereof during the period from November 1, 2002
through the above date of determination does not exceed $20,000,000), to


 


(b)  Consolidated Interest Charges paid or
required to be paid in respect of such period, plus all scheduled payments of
principal made or required to be made with respect to all Indebtedness
(including the principal portion of capital leases) of the Borrower and its
Subsidiaries on a consolidated basis during such period.


 


“Consolidated Interest Charges”
means, for any period, for the Borrower and its Subsidiaries on a consolidated
basis, the sum of (a) all interest, premium payments, fees, charges and related
expenses of the Borrower and its Subsidiaries in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance
with GAAP, and (b) 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 from
continuing operations after extraordinary items (excluding gains or losses from
Dispositions of assets) for that period.


“Consolidated
Net Worth” means, as of any date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, Shareholders’ Equity of the Borrower and
its Subsidiaries on that date.


“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”
shall have the meaning specified in the definition of Affiliate.


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


“Debtor Relief
Laws” means the Bankruptcy Code of the United States of America, 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 


 


3

















 


of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.


“Default”
means any event 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) 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.


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


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


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


“Eligible
Assignee” has the meaning specified in Section 10.07(g).


“Environmental
Laws” means all Laws relating to environmental, health, safety and land use
matters applicable to any property.


“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 other Loan Party 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.


“ERISA”
means the Employee Retirement Income Security Act of 1974 and any regulations
issued pursuant thereto.


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


“ERISA Event”
means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal
by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that
is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete
or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute 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 PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.


“Eurodollar
Rate” means for any Interest Period with respect to any Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the
following formula:


 


	
  Eurodollar Rate  =

  	
   

  	
  Eurodollar Base Rate

  	
   

  
	
   

  	
   

  	
  1.00 - Eurodollar Reserve Percentage

  	
   

  



Where,


“Eurodollar
Base Rate” means, for such Interest Period:


(c)  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


 


4

















 


(d)           if
the rate referenced in the preceding subsection (a) does not appear on such
page or service or such page or service shall cease to 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


 


if the rates referenced
in the preceding subsections (a) and (b) are not available, the rate per annum
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
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.


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


“Event of
Default” means any of the events or circumstances specified in Article
VIII.


“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 charged to Bank of
America on such day on such transactions as determined by the Administrative
Agent.


“Fee Letter”
has the meaning set forth in Section 2.08(d).


“Foreign Lender”
has the meaning specified in Section 10.15(a).


“Foreign
Subsidiary” means a Subsidiary which is organized in a jurisdiction outside
of the United States of America.


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


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


“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, and any corporation or other
entity owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.


“Guarantors”
means, collectively, the Domestic Subsidiaries (present and future) of the
Borrower.


“Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent
on behalf of 


 


5

















 


the Lenders,
substantially in the form of Exhibit E.


“Guaranty
Obligation” means, as to any Person, any (a) obligation, contingent or
otherwise, of such Person guarantying or having the economic effect of
guarantying 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 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 Guaranty
Obligation 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 Guaranty Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guarantying Person in good faith.


“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.


“Indebtedness”
means, as to any Person at a particular time, all of the following, whether or
not included as indebtedness or liabilities in accordance with GAAP:


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


 


(f)  all direct or contingent obligations of
such Person arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments;


 


(g)  net obligations under any Swap Contract
in an amount equal to the Swap Termination Value thereof;


 


(h)  all obligations of such Person to pay
the deferred purchase price of property or services (other than trade accounts
payable in the ordinary course of business);


 


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


 


(j)  capital leases and Synthetic Lease
Obligations; and


 


(k)  all Guaranty Obligations of such Person
in respect of any of the foregoing.


 


For all purposes
hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a
corporation or limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person (subject only to customary exceptions acceptable to
the Required Lenders).  The amount of
any capital lease or Synthetic Lease Obligation as of any date shall 


 


6

















 


be deemed to be
the amount of Attributable Indebtedness in respect thereof as of such date.


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


“Indemnitees”
has the meaning set forth in Section 10.05.


“Interest
Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan; 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, the last Business Day of each March, June, September and December
and the Maturity Date.


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


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, in the case of a
Eurodollar Rate Loan, such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Business Day;


 


any Interest
Period pertaining to a Eurodollar Rate Loan 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


 


no Interest Period
shall extend beyond the scheduled Maturity Date.


 


“Investment”
means, as to any Person, any acquisition or investment by such Person, whether
by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to,
guaranty 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) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.


“IP Rights”
has the meaning set forth in Section 5.16.


“IRS” means
the United States Internal Revenue Service.


“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 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.


“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.


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


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes the L/C Issuer.


“Lending Office”
means, as to any Lender, the office or offices of such Lender described as such
on 


 


7

















 


Schedule 10.02,
or such other office or offices as a Lender may from time to time notify the
Borrower and the Administrative Agent.


“Letter of
Credit” means any letter of credit issued hereunder.  A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.


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


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


“Letter of
Credit Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $5,000,000.  The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.


“Lien”
means any mortgage, pledge, hypothecation, 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,
any financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable Laws of any jurisdiction), including the interest
of a purchaser of accounts receivable.


“Loan” has
the meaning specified in Section 2.01.


“Loan Documents”
means this Agreement, each Note, the Guaranty, the Fee Letter, each Request for
Credit Extension, and each Compliance Certificate.


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


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


“Maturity Date”
means (a) December     , 2005, or (b) such earlier date
upon which the Aggregate Commitments may be terminated in accordance with the
terms hereof.


“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 three
calendar years, has made or been obligated to make contributions.


“Non-Material Subsidiary” means 
any Subsidiary that the Borrower designates as a “Non-Material
Subsidiary” in a written notice delivered (which may be by facsimile
transmission) to the Administrative Agent from time to time, provided that such
Subsidiary meets each of the following conditions:


(i)            the
assets of such Subsidiary (valued at the greater of book or fair market) as at
the end of the immediately preceding fiscal year do not exceed $1,000,000,


 


(ii)           the
aggregate sum of all assets (valued at the greater of book or fair market) of
such Subsidiaries, when combined with the assets of all other Non-Material
Subsidiaries, do not exceed $1,000,000,


 


(iii)          the
revenues of such Subsidiary during the immediately preceding fiscal year do not
exceed $1,000,000; and


 


(iv)          the
revenues of such Subsidiary, when combined with the revenues of all other
Non-Material Subsidiaries, during the immediately preceding fiscal year do not
exceed $1,000,000.


 


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


“Notes”
means, collectively, the Notes.


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and 


 


8

















 


including interest
that accrues 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.


“Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws; (b) with respect to any limited
liability company, the articles of formation 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 and any agreement, instrument, filing or notice with respect thereto
filed in connection with its formation with the secretary of state or other
department in the state of its formation, in each case as amended from time to
time.


“Outstanding
Amount” means (i) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and
prepayments or repayments of 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 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 10.07(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 plan (as described in
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five plan years.


“Permitted
Acquisition” means an Acquisition which meets each of the following
conditions:  (i) the prior, effective
written consent or approval to such Acquisition of the board of directors or
equivalent governing body of the Acquired Business is obtained; (ii) the
Acquired Business represents a line of business substantially the same, similar
or, complimentary to the lines of business carried on by the Borrower and its
Subsidiaries on the date hereof; (iii) immediately before and after giving
effect to such Acquisition, no Default or Event of Default shall exist, (iv)
immediately before and after giving effect to such Acquisition, the Borrower
shall be in compliance with the financial tests set forth in Section 7.13
(for this purpose such financial tests shall be determined on a pro forma basis
as if the Acquisition has been consummated at the beginning of the period of
the four consecutive fiscal quarters of the Borrower then most recently ended),
and (v) the Borrower shall have forwarded to the Administrative Agent such
additional information regarding such Acquisition or the Acquired Business as
the Administrative Agent shall have requested, and (vi) the Borrower shall have
furnished to the Administrative Agent a certificate of its chief financial
officer to the effect that the foregoing conditions are satisfied (such
certificate to be accompanied by a computation of its financial tests set forth
in Section 7.13 and to be satisfactory to the Administrative Agent in all
respects).


“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 any ERISA Affiliate.


“Pro Rata Share”
means, with respect to each Lender, the percentage (carried out to the ninth
decimal place) of the Aggregate Commitments set forth opposite the name of such
Lender on Schedule 2.01, as such share may be adjusted as contemplated
herein.


“Register”
has the meaning set forth in Section 10.07(c).


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


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


“Required
Lenders” means, as of any date of determination, Lenders (which, if there
is more than one Lender hereunder, shall be at least two in number) whose
Voting Percentages aggregate 66-2/3% or more.


“Responsible
Officer” means the president, chief financial officer, vice
president-finance, treasurer or 


 


9

















 


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.


“Shareholders’
Equity” means, as of any date of determination for the Borrower and its
Subsidiaries on a consolidated basis, shareholders’ equity as of that date
deter­mined in accordance with GAAP.


“Share
Repurchase(s)” has the meaning set forth in Section 7.07(e).


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


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


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


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


“Type”
means with respect to a 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 Code for the applicable plan
year.


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


“Voting
Percentage” means, as to any Lender, (a) at any time when the Aggregate
Commitments are in effect, such Lender’s Pro Rata Share and (b) at any time
after the termination of the Aggregate Commitments, the percentage (carried out
to the ninth decimal place) which (i) the sum of (A) the Outstanding Amount of
such Lender’s Loans, plus (B) such Lender’s Pro Rata Share of the
Outstanding Amount of L/C Obligations, then comprises of (ii) the Outstanding
Amount of all Loans and L/C Obligations; provided, however, that
if any Lender has failed to fund any portion of the Loans, 


 


10

















 


participations in
L/C Obligations required to be funded by it hereunder, such Lender’s Voting
Percentage shall be deemed to be zero, and the respective Pro Rata Shares and
Voting Percentages of the other Lenders shall be recomputed for purposes of
this definition and the definition of “Required Lenders” without regard to such
Lender’s Commitment or the outstanding amount of its Loans, or L/C Advances, as
the case may be.


 


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


 


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


 


1.   The words “herein” 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.


 


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


 


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


 


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.


 


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.”


 


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.


 


Accounting Terms.  All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing
the Audited Financial Statements, except as otherwise specifically
prescribed herein.


 


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.


 


11

















 


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).


 


References
to Agreements and Laws. 
Unless otherwise expressly provided herein, (a) references to 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.


 


THE COMMITMENTS AND CREDIT EXTENSIONS


 


Loans.  Subject to the terms and conditions set
forth herein, each Lender severally agrees to make loans (each such loan, a “Loan”)
to the Borrower from time to time on any Business Day during the period from
the Closing Date to the Maturity Date, in an aggregate amount not to exceed at
any time outstanding the amount of such Lender’s Commitment; provided, however,
that after giving effect to any Borrowing, (i) the aggregate Outstanding Amount
of all Loans and L/C Obligations shall not exceed the Aggregate Commitments,
and (ii) the aggregate Outstanding Amount of the Loans of any Lender, plus
such Lender’s Pro Rata Share of the Outstanding Amount of all L/C Obligations,
shall not exceed such Lender’s Commitment. 
Within the limits of each Lender’s Commitment, and subject to the other
terms and conditions hereof, the Borrower may borrow under this Section 2.01,
prepay under Section 2.06, and reborrow under this Section 2.01.  Loans may be Base Rate Loans or Eurodollar
Rate Loans, as further provided herein.


 


Borrowings,
Conversions and Continuations of Loans.


 


Each Borrowing, each
conversion of Loans from one Type to the other, and each continuation of Loans
as the same Type shall be made upon the Borrower’s irrevocable notice to the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 12:00 noon, Chicago time, (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 such telephonic
notice must be confirmed promptly by delivery to the Administrative Agent of a
written Borrowing  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.  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 Borrowing  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 Loans as the same
Type, (ii) the requested date of the Borrowing, 


 


12

















 


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 Borrowing  Notice
or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Loans shall be made or continued 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 Borrowing  Notice, but fails to specify an Interest Period, it will be
deemed to have specified an Interest Period of one month.


 


Following receipt of a
BorrowingNotice, the Administrative Agent shall promptly notify each Lender
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 12:00 noon, Chicago time,
on the Business Day specified in the applicable Borrowing  Notice.  Upon satisfaction of the applicable
conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Credit Extension, Section 4.01), the Administrative Agent shall
make all funds so received available to the Borrower in like funds as received
by the Administrative Agent either by (i) crediting the account of the Borrower
on the books of Bank of America with the amount of such funds or (ii) wire
transfer of such funds, in each case in accordance with instructions provided
to the Administrative Agent by the Borrower; provided, however,
that if, on the date of the Borrowing there are 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, and second, to the Borrower,
as provided above.


 


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 or Event
of Default, no Loans may be requested as, converted to or continued as Eurodollar
Rate Loans without the consent of the Required Lenders, and the Required
Lenders may demand that any or all of the then outstanding Eurodollar Rate
Loans be converted immediately to Base Rate Loans.


 


The Administrative Agent
shall promptly notify the Borrower and the Lenders of the interest rate
applicable to any Eurodollar Rate Loan 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.  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.


 


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 5
Interest Periods in effect with respect to Loans.


 


13

















 


Letters of Credit.


 


The Letter of Credit
Commitment.


 


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 for the
account of the Borrower, 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 Outstanding Amount of all L/C Obligations and all Loans would exceed the
Aggregate Commitments, (y) the aggregate Outstanding Amount of the Loans of any
Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount of
all L/C Obligations, would exceed such Lender’s 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.


 


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


 


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;


 


subject to Section
2.03(b)(iii), the expiry date of such requested Letter of Credit would occur
more than twelve months after the date of issuance or last renewal, unless the
Required Lenders have approved such expiry date;


 


the expiry date of such
requested Letter of Credit would occur after the Letter of Credit Expiration
Date, unless all the Lenders have approved such expiry date; or


 


the issuance of such
Letter of Credit would violate one or more policies of the L/C Issuer.


 


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 


 


14

















 


under the terms hereof, or (B) the beneficiary of such
Letter of Credit does not accept the proposed amendment to such Letter of
Credit.


 


The L/C Issuer shall not
be obligated to issue any Letter of Credit in a currency other than Dollars
(“alternative currency”), unless each of the following conditions is satisfied:
(i) the alternative currency is a currency in which the L/C Issuer customarily
issues letters of credit, and (ii) the related Letter of Credit Application
shall contain such additional terms and provisions as the L/C Issuer shall
require regarding, among other things, (a) the reimbursement to the L/C Issuer
in the applicable alternative currency, and (b) the determination of the dollar
equivalent amount of any such alternative currency for purposes of computing
the Letter of Credit Sublimit and other provisions of this Agreement.


 


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


 


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 L/C Application must be received by the L/C Issuer and the
Administrative Agent not later than 12:00 noon, Chicago time, at least two
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.


 


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.


 


15

















 


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 a 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 would have no obligation at such time to issue such Letter of
Credit in its renewed form under the terms hereof, or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
two 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 4.02 is not then
satisfied.  Notwithstanding anything to
the contrary contained herein, the L/C Issuer shall have no obligation to
permit the renewal of any Auto-Renewal Letter of Credit at any time.


 


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.


 


Drawings and
Reimbursements; Funding of Participations.


 


Upon any drawing under
any Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 11:00 a.m., Chicago time, 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 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 Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Borrowing  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.


 


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 


 


16

















 


Issuer at the Administrative Agent’s Office in an amount
equal to its Pro Rata Share of the Unreimbursed Amount not later than 12:00
noon, Chicago time, 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.


 


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 4.02 cannot be
satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed
Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default
Rate.  In such event, each Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Lender in satisfaction of its participation obligation under this Section
2.03.


 


Until each Lender funds
its 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.


 


Each Lender’s obligation
to make 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 Event of 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 Loans pursuant to this Section 2.03(c)
is subject to the conditions set forth in Section 4.02.  Any such reimbursement shall not 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.


 


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.


 


Repayment of
Participations.


 


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 


 


17

















 


with Section 2.03(c), if the Administrative
Agent receives for the account of the L/C Issuer any payment related to such
Letter of Credit (whether directly from the Borrower or otherwise, including
proceeds of Cash Collateral applied thereto by the Administrative Agent), or
any payment of interest thereon, the Administrative Agent will distribute to
such Lender its Pro Rata Share thereof in the same funds as those received by
the Administrative Agent.


 


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, 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.


 


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 and each drawing under a Letter of Credit that is
refinanced by a Borrowing of Loans, 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:


 


any lack of validity or
enforceability of such Letter of Credit, this Agreement, or any other agreement
or instrument relating thereto;


 


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;


 


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;


 


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


 


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
immediately notify the L/C Issuer.  The
Borrower shall be conclusively 


 


18

















 


deemed to have
waived any such claim against the L/C Issuer and its correspondents unless such
notice is given as aforesaid.


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.  No Agent-Related Person nor 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.  No Agent-Related Person, 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.


 


Cash Collateral.  Upon the request of the Administrative
Agent, (i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing,
or (ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit
may for any reason remain outstanding and partially or wholly undrawn, 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 Letter of Credit Expiration Date,
as the case may be).


 


Applicability of ISP98
and UCP.  Unless
otherwise expressly agreed by the L/C Issuer and the Borrower when a Letter of
Credit is issued (including any such agreement applicable to an Existing Letter
of Credit), (i) the rules of the “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) shall apply
to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the “ICC”) at the time of issuance
(including the ICC 


 


19

















 


decision published by the Commission on Banking
Technique and Practice on April 6, 1998 regarding the European single currency
(euro)) shall apply to each commercial Letter of Credit.


 


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 times
the actual daily maximum amount available to be drawn under each such Letter of
Credit.  Such fee for each Letter of
Credit shall be due and payable on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, and on the Letter of Credit Expiration Date.


 


Fronting Fee and
Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly to the L/C
Issuer for its own account the customary issuance, presentation, amendment and
other processing and/or fronting 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 fees and charges are due
and payable on demand and are nonrefundable.


 


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.


 


Prepayments.


 


The Borrower may, upon
notice to the Administrative Agent, at any time or from time to time
voluntarily prepay 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 12:00 noon, Chicago  time, (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 prepayment of Eurodollar Rate Loans shall be in a
principal amount of  $1,000,000 or a
whole multiple of $500,000 in excess thereof; and (iii) any prepayment of Base
Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof.  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 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, together with any additional amounts required
pursuant to Section 3.05.  Each
such prepayment shall be applied to the Loans of the Lenders in accordance with
their respective Pro Rata Shares.


 


If for any reason the
Outstanding Amount of all Loans and L/C Obligations at any time exceeds the
Aggregate Commitments then in effect, the Borrower shall immediately prepay
Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount
equal to such excess.


 


Reduction
or Termination of Commitments.  The Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Commitments, or permanently reduce the Aggregate
Commitments to an amount not less than the then Outstanding Amount of all Loans



 


20

















 


and L/C Obligations; provided that (i) any such
notice shall be received by the Administrative Agent not later than 12:00 noon,
Chicago time, three Business Days prior to the date of termination or
reduction, and (ii) any such partial reduction shall be in an aggregate amount
of $1,000,000 or any whole multiple of $1,000,000 in excess thereof.  The Administrative Agent shall promptly
notify the Lenders of any such notice of reduction or termination of the
Aggregate Commitments.  Once reduced in
accordance with this Section, the Aggregate Commitments may not be increased.  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Pro Rata
Share.  All commitment  fees
accrued until the effective date of any termination of the Aggregate
Commitments shall be paid on the effective date of such termination.


 


Repayment of Loans.  The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of Loans outstanding on such
date.


 


Interest.


 


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


 


If any amount payable by
the Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Law.  Furthermore, while any Event of Default exists or after
acceleration, 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
Law.  Accrued and unpaid interest on
past due amounts (including interest on past due interest) shall be due and
payable upon demand.


 


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.


 


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


 


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 0.35% per annum times the actual
daily amount by which the Aggregate Commitments exceed the sum of (i) the
Outstanding Amount of Loans and (ii) the Outstanding Amount of L/C
Obligations.  The commitment fee shall
accrue at all times from the Closing Date until the Maturity Date 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.  The commitment 


 


21

















 


fee shall accrue at all times, including at any time
during which one or more of the conditions in Article IV is not met.


 


Lenders’ Upfront Fee.  On the Closing Date, the Borrower shall pay
to the Administrative Agent, for the account of the Lenders in accordance with
their respective Pro Rata Shares, an upfront fee in an amount set forth in a
separate letter agreement (the “Fee Letter”) between the Borrower and
the Administrative Agent.  Such upfront
fees are for the credit facility committed by the Lenders under this Agreement
and are fully earned on the date paid. 
The upfront fee paid to each Lender is solely for its own account and is
nonrefundable for any reason whatsoever.


 


Computation
of Interest and Fees. 
Interest on Base Rate Loans shall be calculated on the basis of a year
of 365 or 366 days, as the case may be, and the actual number of days
elapsed.  Computation of all other types
of interest and all fees shall be calculated on the basis of a year of 360 days
and the actual number of days elapsed. 
Interest shall accrue on each Loan for the day on which the Loan is
made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is
repaid on the same day on which it is made shall bear interest for one day.


 


Evidence of Debt.


 


The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Administrative Agent in the ordinary
course of business.  The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Credit Extensions made by
the Lenders to the Borrower and the interest and payments thereon.  Any failure to so record or any error in
doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Loans or L/C
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, such Lender’s
Loans may be evidenced by a Note, in addition to such accounts or records.  Each Lender may attach schedules to its
Note(s) and endorse thereon the date, Type (if applicable), amount and maturity
of the applicable Loans and payments with respect thereto.


 


In addition to the
accounts and records referred to in subsection (a), each Lender and the
Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of
participations in Letters of Credit.  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.


 


Payments Generally.


 


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 


 


22

















 


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 12:00 noon, Chicago time, 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 12:00 noon, Chicago time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.


 


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.


 


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 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.


 


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:


 


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


 


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 


 


23

















 


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
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 with respect to any amount owing under this
subsection (d) shall be conclusive, absent manifest error.


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
the conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.


 


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


 


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.


 


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, 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,
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, 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.  The Borrower
agrees that any Lender so purchasing a participation from another Lender may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off, but subject to Section 10.09 with
respect to such participation as fully 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, 


 


24

















 


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.


 


TAXES, YIELD PROTECTION AND ILLEGALITY


Taxes.


 


Any and all payments by
the Borrower 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 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, assessments,
fees, withholdings or similar charges, and liabilities being hereinafter
referred to as “Taxes”).  If the
Borrower 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), the Administrative Agent and such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable Laws, and (iv) within 30 days
after the date of such payment, the Borrower 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.


 


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”).


 


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 (for the account of
such Lender) or to such Lender, at the time interest is paid, such additional
amount that 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) such Lender would have received if such Taxes or Other Taxes had not
been imposed.


 


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 


 


25

















 


such Lender, (ii) amounts payable under Section
3.01(c) and (iii) any liability (including 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 30 days after the
date the Lender or the Administrative Agent makes a demand therefor.


 


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 thereof, 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 and will not, in the good faith judgment of such Lender,
otherwise be materially disadvantageous to such Lender.


 


Inability
to Determine Rates. 
If the Administrative Agent determines in connection with any request
for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a)
Dollar deposits are not being offered to banks in the London interbank
eurodollar market for the applicable amount and Interest Period of such
Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for
determining the Eurodollar Rate for such Eurodollar Rate Loan, or (c) the
Eurodollar Rate for such Eurodollar Rate Loan does not adequately and fairly
reflect the cost to the Lenders of funding such Eurodollar Rate 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, conversion 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.


 


Increased
Cost and Reduced Return; Capital Adequacy.


 


If any Lender determines
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 


 


26

















 


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.


 


If any Lender determines
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 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.


 


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:


 


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); or


 


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;


 


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


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


Matters
Applicable to all Requests for Compensation.  A certificate of the
Administrative Agent or any Lender claiming compensation under this Article
III and setting forth in reasonable detail 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.


 


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


 


27

















 


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


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:


 


Unless waived by all the
Lenders (or by the Administrative Agent with respect to immaterial matters or
items specified in clause (iii) or (iv) below with respect to which the
Borrower has given assurances satisfactory to the Administrative Agent that
such items shall be delivered promptly following the Closing Date), the
Administrative Agent’s receipt of the following, each of which shall be
originals or facsimiles (followed promptly by originals) unless otherwise
specified, each properly executed by a Responsible Officer of the signing Loan
Party, each dated the Closing Date (or, in the case of certificates of
governmental officials, a recent date before the Closing Date) and each in form
and substance satisfactory to the Administrative Agent and its legal counsel:


 


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


 


Notes executed by the
Borrower in favor of each Lender requesting such a Note, each in a principal
amount equal to such Lender’s Commitment;


 


such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party as the Administrative Agent may
require to establish the identities of and verify the 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;


 


such evidence as the
Administrative Agent may reasonably require to verify that each Loan Party is
duly organized or formed, validly existing, in good standing and qualified to
engage in business in each jurisdiction in which it is required to be qualified
to engage in business, including certified copies of each Loan Party’s
Organization Documents, certificates of good standing and/or qualification to
engage in business and tax clearance certificates;


 


a certificate signed by a
Responsible Officer of the Borrower certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied, and
(B) that there has been no event or circumstance since the date of the Audited
Financial Statements which has or could be reasonably expected to have a
Material Adverse Effect;


 


an opinion of counsel to
each Loan Party substantially in the form of Exhibit F;  and


 


such other assurances,
certificates, documents, consents or opinions as the Administrative Agent, the
L/C Issuer, or the Required Lenders reasonably may require.


 


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


 


Unless waived by the
Administrative Agent, the Borrower shall have paid all Attorney Costs of the
Administrative Agent to the extent invoiced prior to or on the Closing Date,
plus such 


 


28

















 


additional amounts of Attorney Costs as shall
constitute its 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).


 


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


 


The representations and
warranties of the Borrower contained in Article V, or which are
contained in any document furnished at any time under or in connection
herewith, 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.


 


No Default or Event of
Default shall exist, or would result from such proposed Credit Extension.


 


The Administrative Agent
and, if applicable, the L/C Issuer 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
4.02(a) and (b) have been satisfied on and as of the date of the
applicable Credit Extension.


 


REPRESENTATIONS AND WARRANTIES


 


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


Existence,
Qualification and Power; Compliance with Laws.  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 governmental licenses, authorizations, consents and approvals to own its
assets, carry on its business and to execute, deliver, and perform its
obligations under the Loan Documents to which it is a party, (c) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (d) is in
compliance with all Laws, except in each case referred to in clause (c) or this
clause (d), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


Authorization; No
Contravention.  The
execution, delivery and performance by each Loan Party of each Loan Document to
which such Person is party, have been duly authorized by all necessary
corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any Contractual Obligation to which such Person is a party or
any order, injunction, writ or decree of any Governmental Authority to which
such Person or its property is subject; or (c) violate any Law.


 


Governmental
Authorization.  No
approval, consent, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority is necessary or required in 


 


29

















 


connection with the execution, delivery or performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan
Document.


 


Binding Effect.  This Agreement has been, and each
other Loan Document, when delivered hereunder, will have been, duly executed
and delivered by each Loan Party that is party thereto.  This Agreement constitutes, and each other
Loan Document when so delivered will constitute, a legal, valid and binding
obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms.


 


Financial Statements; No
Material Adverse Effect.


 


The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein; (ii) fairly present the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and (iii)
show all material indebtedness and other liabilities, direct or contingent, of
the Borrower and its consolidated Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness.


 


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


 


Litigation.  Except as specifically disclosed
in Schedule 5.06, there are no actions, suits, proceedings, claims or
disputes pending or, to the knowledge of the Borrower after due and diligent
investigation, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of its
Subsidiaries or against any of their properties or revenues that (a) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) if determined adversely, could
reasonably be expected to have a Material Adverse Effect.


 


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


 


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.  As of the Closing Date, the property of the
Borrower and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01.


 


Environmental Compliance.  The Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility
for violation of any Environmental Law on their respective businesses,
operations and properties, and as a result thereof the Borrower has reasonably 


 


30

















 


concluded that, except as specifically disclosed in Schedule
5.09, such Environmental Laws and claims could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


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 its Subsidiaries operate.


 


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 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.


 


ERISA Compliance.


 


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


 


There are no pending or,
to the best knowledge of the Borrower, threatened claims, actions or lawsuits,
or action by any Governmental Authority, with respect to any Plan that could 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.


 


(i)  No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither the Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of
ERISA); (iv) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither the Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA.


 


31

















 


Subsidiaries.  As of the Closing Date, the
Borrower has no Subsidiaries other than those specifically disclosed in Part
(a) of Schedule 5.13 and has no equity investments in any other
corporation or entity other than those specifically disclosed in Part(b) of Schedule
5.13.


 


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


 


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.


 


None of the Borrower, any
Person controlling 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.


 


Disclosure.  No statement, information, report,
representation, or warranty made by any Loan Party in any Loan Document or
furnished to the Administrative Agent or any Lender by or on behalf of any Loan
Party in connection with any Loan Document contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.


 


Intellectual Property; Licenses,
Etc.  The Borrower and its
Subsidiaries own, or possess the right to use, all of the trademarks, service
marks, trade names, copyrights, patents, patent rights, franchises, licenses
and other intellectual property rights (collectively, “IP Rights”) that
are reasonably necessary for the operation of their respective businesses,
without conflict with the rights of any other Person.  To the best knowledge of the Borrower, no slogan or other
advertising device, product, process, method, substance, part or other material
now employed, or now contemplated to be employed, by the Borrower or any
Subsidiary infringes upon any rights held by any other Person.  Except as specifically disclosed in Schedule
5.16, no claim or litigation regarding any of the foregoing is pending or,
to the best knowledge of the Borrower, threatened, and no patent, invention,
device, application, principle or any statute, law, rule, regulation, standard
or code is pending or, to the knowledge of the Borrower, proposed, which, in
either case, could reasonably be expected to have a Material Adverse Effect.


 


AFFIRMATIVE
COVENANTS


 


So long as any
Lender shall have any Commitment hereunder, any Loan or other Obligation shall
remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
the Borrower shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, 6.03 and 6.11) cause each
Subsidiary to:


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


 


32

















 


as soon as available, but
in any event within 90 days after the end of each fiscal year of the Borrower,
a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal year, and the related consolidated statements of income or
operations, shareholders’ equity and cash flows for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail, audited and accompanied by a report and opinion
of an independent certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report and opinion shall
be prepared in accordance with GAAP and shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions not reasonably acceptable to the Required
Lenders; and


 


as soon as available, but
in any event within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, a consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of income or operations, 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 portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of the Borrower as fairly presenting the
financial condition, results of operations 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.


 


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


 


concurrently with the
delivery of the financial statements referred to in Section 6.01(a),
a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Default or Event of Default under the
financial covenants set forth herein or, if any such Default or Event of
Default shall exist, stating the nature and status of such event;


 


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


 


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


 


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


 


33

















 


promptly, such additional
information regarding the business, financial or corporate affairs of the
Borrower or any Subsidiary as the Administrative Agent, at the request of any
Lender, may from time to time request.


 


Each document
required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(d) shall be deemed to have been delivered on the date on
which the Borrower posts such document on the Borrower’s website on the
Internet at the website address listed on Schedule 10.02 hereof, or when
such document is posted on the Securities and Exchange Commission’s website at
www.sec.gov or on IntraLinks; provided that (i) the Borrower shall
deliver paper copies of all such documents to the Administrative Agent or any
Lender that requests the Borrower to deliver such paper copies until a request
to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) the Borrower shall notify by facsimile the Administrative Agent
and each Lender of the posting of each such document.  The Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above in this
paragraph, 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.


 


Notices.  Promptly notify the Administrative Agent and
each Lender:


 


of the occurrence of any
Default or Event of Default;


 


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


 


of any litigation,
investigation or proceeding affecting any Loan Party in which the amount
involved exceeds the $2,500,000, or in which injunctive relief or similar
relief is sought, which relief, if granted, could reasonably be expected to
have a Material Adverse Effect;


 


of the occurrence of any
ERISA Event;


 


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


 


Each notice
pursuant to this Section shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take
with respect thereto.  Each notice
pursuant to Section 6.03(a) shall describe with particularity any and
all provisions of this Agreement or other Loan Document that have been
breached.


Payment of Obligations.  Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with GAAP are being
maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property; and (c) all Indebtedness,
as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness.


 


34

















 


Preservation of Existence, Etc.  Preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the
jurisdiction of its organization; provided that the requirements of this
Section 6.05 shall not apply to Non-Material Subsidiaries.


 


Maintenance of Properties.  Except where the failure to do so would not
reasonably be expected to have a Material Adverse Effect, maintain, (a)
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 excepted, (b) make all necessary repairs thereto and renewals and
replacements thereof; (c) use the standard of care typical in the industry in
the operation and maintenance of its facilities, (d) take all reasonable action
to maintain all rights, privileges, permits, licenses and franchises necessary
or desirable in the normal conduct of its business (other than in a transaction
permitted by Section 7.04 or 7.05); and (e) preserve or renew all
of its registered patents, trademarks, trade names and service marks.


 


Maintenance of Insurance.  Maintain with financially sound and
reputable insurance companies not Affiliates of the Borrower, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts as are customarily carried under similar
circumstances by such other Persons.


 


Compliance with Laws.  Comply in all material respects
with the requirements of all Laws applicable to it or to its business or
property, except in such instances in which (i) such requirement of Law is
being contested in good faith or a bona fide dispute exists with respect
thereto; or (ii) the failure to comply therewith could not reasonably be
expected to have a Material Adverse Effect.


 


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.


 


Inspection Rights.  Permit representatives and
independent contractors of the Administrative Agent and each Lender to visit
and inspect any of its properties, to examine its corporate, financial and
operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at 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 Default or Event of Default exists, neither the
Administrative Agent nor any Lender shall make more than one visit in any
fiscal 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.


 


Compliance with ERISA.  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 


 


35

















 


provisions of ERISA, the Code and other Federal or
state law; (b) cause each Plan which is qualified under Section 401(a) of the
Code to maintain such qualification; and (c) make all required contributions to
any Plan subject to Section 412 of the Code.


 


Use of Proceeds.  Use the proceeds of the Credit
Extensions (i) to make Share Repurchases pursuant to Section 7.07(e); provided
that any shares so purchased or acquired shall be retired concurrently with
such purchase or acquisition, (ii) to finance Permitted Acquisitions, and (iii)
for working capital, capital expenditures and other purposes not in
contravention of any Law or of any Loan Document.


 


Guaranty
of Domestic Subsidiaries.  Cause each Domestic Subsidiary (present and future) to execute
and deliver to the Administrative Agent the Guaranty (accompanied by such
supporting documents as the Administrative Agent shall require), provided,
however, that the provisions of this Section 6.13 shall not apply to a
Non-Material Subsidiary.


 


NEGATIVE
COVENANTS


 


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


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


 


Liens pursuant to any
Loan Document;


 


Liens existing on the
date hereof and listed on Schedule 7.01 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 7.03(b);


 


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


 


carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period
of more than 30 days or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;


 


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;


 


deposits to secure the
performance of bids, trade contracts (other than for borrowed money), leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;


 


36

















 


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 property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;


 


Liens securing judgments
for the payment of money in an aggregate amount not in excess of the $2,500,000
(except to the extent covered by independent third-party insurance as to which
the insurer has acknowledged in writing its obligation to cover), unless any
such judgment remains undischarged for a period of more than 30 consecutive
days during which execution is not effectively stayed;


 


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


 


(a)  Liens on
margin stock (as defined in Regulation U), but only to the extent that the
value of such margin stock would exceed 25% of the consolidated assets of the
Borrower.


 


Investments.  Make any Investments, except:


 


Investments other than
those permitted by subsections (b) through (h) that are existing on the date
hereof and listed on Schedule 7.02;


 


Investments held by the
Borrower or such Subsidiary in the form of cash equivalents or short-term
marketable securities;


 


advances to officers,
directors and employees of the Borrower and Subsidiaries in an aggregate amount
not to exceed $250,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;


 


Investments of any
Subsidiary in the Borrower or another Subsidiary;


 


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


 


Guaranty Obligations
permitted by Section 7.03;


 


Investments permitted by Section
7.04;


 


Permitted Acquisitions;
and


 


(b)  additional
Investments not exceeding $10,000,000 in the aggregate for all such
Investments.


 


37

















 


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


 


Indebtedness under the
Loan Documents;


 


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


 


Guaranty Obligations of
the Borrower or any Subsidiary in respect of Indebtedness otherwise permitted
hereunder of the Borrower or any wholly-owned Subsidiary;


 


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; and


 


Indebtedness incurred
after the date in respect of capital leases, Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets; provided, however,
that the aggregate amount of all such Indebtedness not exceed $5,000,000 at any
one time outstanding; and


 


(c) 
reimbursement obligations in respect of letters of credit in an
alternative currency which the Issuing Bank has declined to issue pursuant to
Section 2.03(a)(iv) of this Agreement, provided that the aggregate outstanding
amount of all such letters of credit, when added to the aggregate outstanding
amount of all Letters of Credit issued pursuant to this Agreement, shall not
exceed the Letter of Credit Sublimit.


 


Fundamental Changes.  Merge, consolidate with or into,
or convey, transfer, lease or otherwise dispose of (whether in one transaction
or in a series of transactions) all or substantially all of the assets of
Borrower and its Subsidiaries as a whole (whether now owned or hereafter
acquired) to or in favor of any Person, except that, so long as no Default or
Event of Default exists or would result therefrom:


 


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


 


any Subsidiary may sell
all or substantially all of its assets (upon voluntary liquidation or
otherwise), to the Borrower or to another Subsidiary; provided that if
the seller in such a transaction is a wholly-owned Subsidiary, then the
purchaser must also be a wholly-owned Subsidiary; and


 


38

















 


(d)  any
Subsidiary may merge with any Person in connection with a Permitted
Acquisition, provided that such Subsidiary is the surviving entity.


 


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


 


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


 


Dispositions of inventory
and other property in the ordinary course of business;


 


Dispositions of equipment
or real property to the extent that (i) such property is exchanged for credit
against the purchase price of similar replacement property, (ii) the proceeds
of such Disposition are reasonably promptly applied to the purchase price of
such replacement property or (iii) the board of directors or senior management
of the Borrower or such Subsidiary has determined in good faith that the
failure to replace such property will not be detrimental to the business of the
Borrower or such Subsidiary;


 


Dispositions of property
by any Subsidiary to the Borrower or to a wholly-owned Subsidiary;


 


Dispositions permitted by
Section 7.04;


 


licenses of IP rights in
the ordinary course of business;


 


(e) 
Dispositions of margin stock (as defined in Regulation U) at fair market
value, but only to the extent that the value of such margin stock would exceed
25% of the consolidated assets of the Borrower; and


 


(f)  additional
Dispositions provided that (i) such additional Dispositions shall not exceed
$10,000,000 in the aggregate during the term of this Agreement, and (ii) no
Default or Event of Default shall exist immediately before or after giving
effect thereto;


 


it being
understood, that (i) any Disposition pursuant to clauses (a) through (h) shall
be for fair market value and (ii) this Section 7.05 shall not be deemed to
restrict the issuance by the Company of its stock.


Lease Obligations.  Create or suffer to exist any
obligations for the payment of rent for any property under lease or agreement
to lease, except:


 


leases in existence on
the date hereof and listed on Schedule 7.06, and any renewal, extension
or refinancing thereof; and


 


operating leases (other
than those constituting Synthetic Lease Obligations) entered into or assumed by
the Borrower or any Subsidiary after the date hereof in the ordinary course of
business;


 


capital leases and
Synthetic Lease Obligations to the extent permitted by Section 7.03.


 


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


 


39

















 


each Subsidiary may make
Restricted Payments to the Borrower and to wholly-owned Subsidiaries (and, in
the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the
Borrower and any Subsidiary and to each other owner of capital stock of such
Subsidiary on a pro rata basis based on their relative ownership interests);


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


 


the Borrower and each
Subsidiary may purchase, redeem or otherwise acquire shares of its common stock
or warrants or options to acquire any such shares with the proceeds received
from the substantially concurrent issue of new shares of its common stock; and


 


the Borrower may declare
or pay cash dividends to its stockholders provided that immediately before and
after giving effect to such declaration or payment, no Default or Event of
Default shall exist, and


 


the Borrower may purchase
or otherwise acquire shares of its capital stock (including Class A common
stock and Class B common stock) or warrants, rights or options to acquire any
such shares for cash (individually, a “Share Repurchase” and collectively, the
“Share Repurchases”), provided that (1) any shares of the Borrower’s
capital stock, warrants, rights or options so purchased or acquired shall be
retired concurrently with such purchase or acquisition (or held by the Borrower
thereafter as treasury shares), and (2) immediately before and after giving
effect to any such Share Repurchase pursuant to this Section 7.07(e), no
Default or Event of Default would exist. 
For purposes hereof, a Share Repurchase of the Borrower’s Class B common
stock is sometimes called a “Class B Share Repurchase”.


 


ERISA.  At any time engage in a
transaction which would be subject to Section 4069 or 4212(c) of ERISA, or
permit any Plan to (a) engage in any non-exempt “prohibited transaction” (as
defined in Section 4975 of the Code); (b) fail to comply with ERISA or any
other applicable Laws; or (c) incur any material “accumulated funding
deficiency” (as defined in Section 302 of ERISA), which, with respect to each
event listed above, would reasonably be expected to have a Material Adverse
Effect.


 


Change in Nature of Business.  Engage in any material line of
business which is not substantially the same, similar to or complimentary to
those lines of business conducted by the Borrower and its Subsidiaries on the
date hereof.


 


Transactions
with Affiliates.  Enter
into any transaction of any kind with any Affiliate of the Borrower, other than
arm’s-length transactions with Affiliates that are otherwise permitted
hereunder.


 


Burdensome Agreements.  Enter into any Contractual Obligation
that limits the ability (a) of any Subsidiary to make Restricted Payments to
the Borrower or to otherwise transfer property to the Borrower or (b) of the
Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens on
property of such Person, provided, that the provisions of this Section 7.09
shall not apply to Non-Material Subsidiaries.


 


40

















 


 


Use of Proceeds.  Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, in
violation of the provisions of Regulation U of the FRB.


 


Financial Covenants.


 


Consolidated Net Worth.  Permit Consolidated Net Worth as of the end
of any fiscal quarter of the Borrower to be less than the sum of (a)
$197,000,000, plus (b) an amount equal to 50% of the Consolidated Net Income
earned in each fiscal quarter ending after April 30, 2002 (with no
deduction for a net loss in any such fiscal quarter), less (c) the aggregate
purchase price of all Class B Share Repurchases pursuant to
Section 7.07(e), provided that for purposes of this Section 7.13 the
amount of this clause (c) shall not exceed $20,000,000.


 


Consolidated Fixed Charge
Coverage Ratio. 
Permit the Consolidated Fixed charge Coverage Ratio as of the
end of any fiscal quarter of the Borrower to be less than 1.50:1.00.


 


EVENTS OF DEFAULT AND REMEDIES


 


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


 


Non-Payment.  The Borrower fails to pay (i) 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 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


 


Specific Covenants.  The Borrower fails to perform or observe any
term, covenant or agreement contained in any of Section 6.01, 6.02,
6.03, 6.05, 6.10 or 6.12 or Article VII; or


 


Other Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days (it being understood that to the extent that such
failure cannot be remedied within such 30-day period and such Loan Party is
diligently proceeding to remedy such failure, such Loan Party shall be entitled
to an additional 30-day period to cure such failure); or


 


Representations and
Warranties.  Any
representation or warranty made or deemed made by the Borrower or any other
Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith proves to have been incorrect in any material
respect when made or deemed made; or


 


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 Guaranty Obligation (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
$1,000,000, or (B) fails to observe 


 


41

















 


or perform any other agreement or condition relating
to any such Indebtedness or Guaranty Obligation or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to permit
the holder or holders of such Indebtedness or the beneficiary or beneficiaries
of such Guaranty Obligation (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause (after the expiration of any
applicable cure period) such Indebtedness to be demanded or to become due or to
be repurchased or redeemed (automatically or otherwise) prior to its stated
maturity, or such Guaranty Obligation to become payable or cash collateral in
respect thereof to be demanded; 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) or (B)
any Termination Event (as so defined) under such Swap Contract as to which the Borrower
or any Subsidiary is an Affected Party (as so defined) and, in either event,
the Swap Termination Value owed by the Borrower or such Subsidiary as a result
thereof is greater than the $1,000,000; or


 


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


 


Inability to Pay Debts;
Attachment.  (i) The
Borrower or any Subsidiary (other than a Non-Material Subsidiary) 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
30 days after its issue or levy; or


 


Judgments.  There is entered against the Borrower or any
Subsidiary (other than a Non-Material Subsidiary) (i) a final judgment or order
for the payment of money in an aggregate amount exceeding the $2,500,000 (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage), or (ii) any non-monetary final judgment
that has, or could reasonably be expected to have, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of ten consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or


 


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 $1,000,000, or (ii) the Borrower or any ERISA Affiliate fails to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its 


 


42

















 


withdrawal liability under Section 4201 of ERISA under
a Multiemployer Plan in an aggregate amount in excess of the $1,000,000; or


 


Invalidity of Loan
Documents.  Any Loan
Document, at any time after its execution and delivery and for any reason other
than the agreement of all the Lenders or satisfaction in full of all the
Obligations, ceases to be in full force and effect, or is declared by a court
of competent jurisdiction to be null and void, invalid or unenforceable in any
respect; 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


 


Change of Control.  There occurs any Change of Control.


 


Remedies
Upon Event of Default.  If
any Event of Default occurs, the Administrative Agent shall, at the request of,
or may, with the consent of, the Required Lenders,


 


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;


 


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


 


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


 


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 any event specified in subsection
(f) of Section 8.01, 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.


 


ADMINISTRATIVE
AGENT


 


Appointment
and Authorization of Administrative Agent


 


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 


 


43

















 


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.


 


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 until such time (and except for so long) as
the Administrative Agent may agree at the request of the Required Lenders to
act for the L/C Issuer with respect thereto; provided, however,
that the L/C Issuer shall have all of the benefits and immunities
(i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the L/C Issuer in connection
with Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term “Administrative Agent” as used in this Article
IX included the L/C Issuer with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to the L/C Issuer.


 


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


 


Liability
of Administrative Agent. 
No Agent-Related Person 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 in connection with
its duties expressly set forth herein), 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.  No Agent-Related Person 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.


 


Reliance
by Administrative Agent.


 


The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
writing, communication, signature, resolution, representation, notice, consent,



 


44

















 


certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent.  The Administrative Agent shall be fully justified in failing or
refusing to take any action under 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 all the Lenders, if required hereunder, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and participants. 
Where this Agreement expressly permits or prohibits an action unless the
Required Lenders otherwise determine, the Administrative Agent shall, and in
all other instances, the Administrative Agent may, but shall not be required
to, initiate any solicitation for the consent or a vote of the Lenders.


 


For purposes of
determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
either sent by the Administrative Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to a Lender.


 


Notice of Default.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of
Default, except with respect to defaults in the payment of principal, interest
and fees required to be paid to the Administrative Agent for the account of the
Lenders, unless the Administrative Agent shall have received written notice
from a Lender or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a “notice of
default.”  The Administrative Agent will
notify the Lenders of its receipt of any such notice.  The Administrative Agent shall take such action with respect to
such Default or Event of Default as may be directed by the Required Lenders in accordance
with Article VIII; 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 or Event of
Default as it shall deem advisable or in the best interest of the Lenders.


 


Credit Decision; Disclosure
of Information by Administrative Agent.  Each Lender acknowledges that no Agent-Related Person 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 any
Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their
possession.  Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person 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 


 


45

















 


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 any Agent-Related Person 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 any Agent-Related Person.


 


Indemnification
of Administrative Agent. 
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless each
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; provided, however, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Person’s own gross
negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of
this Section.  Without limitation of the
foregoing, each Lender shall reimburse the Administrative Agent upon demand for
its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any
other Loan Document, or any document contemplated by or referred to herein, to
the extent that the Administrative Agent is not reimbursed for such expenses by
or on behalf of the Borrower.  The
undertaking in this Section shall survive termination of the Aggregate
Commitments, the payment of all Obligations hereunder and the resignation of
the Administrative Agent.


 


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 


 


46

















 


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.


 


Successor
Administrative Agent. 
The Administrative Agent may resign as Administrative Agent upon 30
days’ notice to the Lenders and Borrower;  provided that any such resignation by Bank
of America shall also constitute its resignation as L/C Issuer.  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 subject to the consent of 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 and L/C Issuer and the respective terms
“Administrative Agent” and “L/C Issuer” shall mean such successor
administrative agent and Letter of Credit issuer, as the case may be; and the
retiring Administrative Agent’s appointment, powers and duties as Administrative
Agent shall be terminated and the retiring L/C Issuer’s and 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 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]  After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Article IX and Sections 10.04 and 10.05
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 which is 30 days
following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above.


 


MISCELLANEOUS


 


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


 


extend or increase the
Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02);


 


47

















 


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;


 


reduce the principal of,
or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (iv) of the proviso below) any fees or other amounts payable
hereunder or under any other Loan Document; 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;


 


change the percentage of
the Aggregate Commitments or of the aggregate unpaid principal amount of the Loans
and L/C Obligations which is required for the Lenders or any of them to take
any action hereunder;


 


change the Pro Rata Share
or Voting Percentage of any Lender;


 


amend this Section, or Section
2.14, or any provision herein providing for consent or other action by all
the Lenders; or


 


release any Guarantor
from the Guaranty;


 


and, provided
further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Required Lenders or
each directly-affected Lender, as the case may be, 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; and (ii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Required Lenders or each
directly-affected Lender, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document.  Notwithstanding anything to the contrary
herein, any Lender that has a Voting Percentage of zero shall not have any
right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Pro Rata Share of such Lender may not be increased without the
consent of such Lender.


 


Notices
and Other Communications; Facsimile Copies


 


General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission) and mailed, faxed or delivered, to the
address, facsimile number or (subject to subsection (c) below) electronic mail
address specified for notices on Schedule 10.02; or, in the case of the
Borrower, the Administrative Agent, the L/C Issuer, to such other address as
shall be designated by such party in a notice to the other parties, and in the
case of any other party, to such other address as shall be designated by such
party in a notice to the Borrower, the Administrative Agent, the L/C Issuer.  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 intended recipient and (ii) (A) if delivered by hand or by
courier, when signed for by the intended recipient; (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 and the L/C
Issuer pursuant to Article II shall not be effective until actually
received by such Person.  Any notice or
other communication permitted to be given, made or confirmed by telephone
hereunder shall be 


 


48

















 


given, made or confirmed by means of a telephone call
to the intended recipient at the number specified on Schedule 10.02, it
being understood and agreed that a voicemail message shall in no event be
effective as a notice, communication or confirmation hereunder.


 


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.


 


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 6.02, and to distribute Loan Documents for execution by the
parties thereto, and may not be used for any other purpose.


 


Reliance by
Administrative Agent and Lenders. 
The Administrative Agent and the Lenders shall be entitled to
rely and act upon any notices (including telephonic Borrowing  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.  The Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower.  All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


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 or therein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


Attorney Costs, Expenses
and Taxes.  The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all reasonable
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 (b) to pay
or reimburse the Administrative Agent and each Lender for all costs and
expenses incurred in 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 


 


49

















 


proceeding under any Debtor Relief Law), including all
Attorney Costs.  The foregoing costs and
expenses shall include all reasonable search, filing, recording, title
insurance and appraisal charges and fees and taxes related thereto, and other
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
reasonable cost of independent public accountants and other outside experts
retained by the Administrative Agent. 
The agreements in this Section shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations.


 


Indemnification
by the Borrower. 
Whether or not the transactions contemplated hereby are consummated, the
Borrower shall indemnify and hold harmless each Agent-Related Person, each
Lender and their respective Affiliates, directors, officers, employees,
counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including Attorney Costs) of any kind or nature whatsoever 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 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), or (c) any actual or alleged presence or
release of Hazardous Materials on or from any property currently or formerly
owned or operated by the Borrower or any other Loan Party, or any Environmental
Liability related in any way to the Borrower or any other Loan Party, or  (d)
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, 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.  The agreements in this Section shall survive
the resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Commitments and the repayment, satisfaction or discharge of
all the other Obligations.  All amounts
due under this Section 10.05 shall be payable within ten Business Days
after demand therefor.


 


Payments Set Aside.  To the extent that the Borrower makes a
payment 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 


 


50

















 


(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.


 


Successors and Assigns.


 


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 any attempted
assignment or transfer by the Borrower without such consent 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.


 


Any Lender may at any
time assign to one or more Eligible Assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations) at the time owing to it); provided
that (i) except in the case of an assignment of the entire remaining amount of
the assigning Lender’s Commitment and the Loans at the time owing to it or in
the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) subject to each
such assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent or, if
“Trade Date” is specified in the Assignment and Assumption, as of the Trade
Date, shall not be less than $5,000,000 unless each of the Administrative Agent
and, so long as no Event of Default has occurred and is continuing, the
Borrower otherwise consents (each such consent not to be unreasonably withheld
or delayed), (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned, and (iii)
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 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 and 3.05 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 new or replacement Notes to the
assigning Lender and 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 


 


51

















 


this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.


 


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


 


Any Lender may at any
time, without the consent of, or notice to, the Borrower or the Administrative
Agent, sell participations to any Person (other than a natural person or the
Borrower or any of the Borrower’s Affiliates or Subsidiaries (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations) 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 that would (i) postpone any date upon which any payment of money
is scheduled to be paid to such Participant, or  (ii) reduce the principal,
interest, fees or other amounts payable to such Participant, or (iii) release
any Guarantor from the Guaranty. 
Subject to subsection (e) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09  as
though it were a Lender.


 


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
10.15 as though it were a Lender.


 


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 Notes, if any) to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank; 


 


52

















 


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.


 


As used herein, “Eligible
Assignee” means:  (a) a Lender; (b)
any other banking or financial institution organized under the laws of the
United States with combined capital and surplus in excess of $500 million
approved by (i) the Administrative Agent or the L/C Issuer, and (ii) unless (A)
such Person is taking delivery of an assignment in connection with physical
settlement of a credit derivative transaction or (B) 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.


 


Notwithstanding anything
to the contrary contained herein, if at any time Bank of America assigns all of
its Commitment and Loans pursuant to subsection (b) above, Bank of America may,
upon 30 days’ notice to the Borrower and the Lenders, resign as L/C
Issuer.  In the event of any such
resignation as L/C Issuer, the Borrower shall be entitled to appoint from among
the Lenders a successor L/C Issuer 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. 
Bank of America 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 participations in Unreimbursed Amounts pursuant to Section 2.03(c)).


 


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 instructed 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 Borrower;
(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 


 


53

















 


connection with the administration and management of
this Agreement, the other Loan Documents, the Commitments, and the Credit
Extensions.  For the purposes of this
Section, “Information” means all information received from the Borrower
relating to the Borrower 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 the Borrower; provided that, in the case of
information received from the Borrower 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.


 


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, each 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, 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. 
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.


 


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.


 


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.


 


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 


 


54

















 


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.


 


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 or Event of 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 shall remain unpaid or unsatisfied or any Letter of Credit
shall remain outstanding.


 


Severability.  Any provision of this Agreement and the
other Loan Documents to which the Borrower is a party that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


Tax Forms.  1. 
Each Lender that is not a “United States person” within the meaning of
Section 7701(a)(30) of the Code (a “Foreign Lender”) shall deliver to
the Administrative Agent, prior to receipt of any payment subject to withholding
under the 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 Person and entitling it to an exemption from, or reduction
of, withholding tax on all payments to be made to such Person 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 Person by the Borrower pursuant to
this Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Person is entitled to an exemption from, or
reduction of, U.S. withholding tax. 
Thereafter and from time to time, each such Person shall (i) 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 Person by the Borrower pursuant to
this Agreement, (ii) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed exemption or
reduction, and (iii) 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 Person.  If such Person fails to deliver the above
forms or other documentation, then the Administrative Agent may withhold from
any 


 


55

















 


interest payment to such Person an amount equivalent
to the applicable withholding tax imposed by Sections 1441 and 1442 of the
Code, without reduction.


 


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 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 Code, without reduction.


 


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
Commitments, repayment of all Obligations and the resignation of the
Administrative Agent.


 


Governing Law.


 


THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS
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.


 


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 ILLINOIS SITTING IN CHICAGO OR OF THE
UNITED STATES FOR THE NORTHERN 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.


 


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 


 


56

















 


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.


 


Entire Agreement.  This Agreement and the other Loan Documents
represent the final agreement AMONG the parties and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the
parties.  There are no unwritten oral
agreements AMONG the parties.


 


57

















 


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


 


	
   

  	
  METHODE ELECTRONICS, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Douglas
  A. Koman

  	
   

  
	
   

  	
   

  
	
   

  	
  Name: 
  Douglas A. Koman

  
	
   

  	
   

  
	
   

  	
  Title: Vice President, Corporate Finance

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as

  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David A.
  Johanson

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:  David
  A. Johanson

  
	
   

  	
   

  
	
   

  	
  Title:  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Chris D.
  Buckner

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:  Chris
  D. Buckner

  
	
   

  	
   

  
	
   

  	
  Title:  Vice
  President

  
					



 


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