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Exhibit 10.23  




 
 
$525,000,000  


 CREDIT AGREEMENT  


 dated as of                        , 2004,  


 among  


 ADESA, INC.,

as Borrower,  


 THE GUARANTORS PARTY THERETO,

as Subsidiary Guarantors,  


 THE LENDERS PARTY THERETO  


 and  


 UBS SECURITIES LLC

and

MERRILL LYNCH & CO.,

as Joint Lead Arrangers and Co-Bookmanagers,  


 BANK ONE, N.A.,

GENERAL ELECTRIC CAPITAL CORPORATION,

KEYBANK NATIONAL ASSOCIATION,

SUNTRUST BANK

and

U.S. BANK NATIONAL ASSOCIATION

as Co-Documentation Agents,  


 MERRILL LYNCH & CO.,

as Syndication Agent,  


 UBS AG, STAMFORD BRANCH,

as Issuing Bank, Administrative Agent and Collateral Agent,  


 and  


 UBS LOAN FINANCE LLC,

as Swingline Lender


Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY 10005  










   TABLE OF CONTENTS  



	Section
 
	 	 
	 	Page

	ARTICLE I
	

DEFINITIONS
	

SECTION 1.01	
 	

Defined Terms	
 	

1
	SECTION 1.02	 	Classification of Loans and Borrowings	 	28
	SECTION 1.03	 	Terms Generally	 	28
	SECTION 1.04	 	Accounting Terms; GAAP	 	28
	SECTION 1.05	 	Resolution of Drafting Ambiguities	 	28
	

ARTICLE II
	

THE CREDITS
	

SECTION 2.01	
 	

Commitments	
 	

28
	SECTION 2.02	 	Loans	 	29
	SECTION 2.03	 	Borrowing Procedure	 	30
	SECTION 2.04	 	Evidence of Debt; Repayment of Loans	 	30
	SECTION 2.05	 	Fees	 	31
	SECTION 2.06	 	Interest on Loans	 	32
	SECTION 2.07	 	Termination and Reduction of Commitments	 	32
	SECTION 2.08	 	Interest Elections	 	33
	SECTION 2.09	 	Amortization of Term Borrowings	 	34
	SECTION 2.10	 	Optional and Mandatory Prepayments of Loans	 	34
	SECTION 2.11	 	Alternate Rate of Interest	 	36
	SECTION 2.12	 	Increased Costs	 	37
	SECTION 2.13	 	Breakage Payments	 	38
	SECTION 2.14	 	Payments Generally; Pro Rata Treatment; Sharing of Setoffs	 	38
	SECTION 2.15	 	Taxes	 	39
	SECTION 2.16	 	Mitigation Obligations; Replacement of Lenders	 	41
	SECTION 2.17	 	Swingline Loans	 	42
	SECTION 2.18	 	Letters of Credit	 	43
	

ARTICLE III
	

REPRESENTATIONS AND WARRANTIES
	

SECTION 3.01	
 	

Organization; Powers	
 	

48
	SECTION 3.02	 	Authorization; Enforceability	 	49
	SECTION 3.03	 	No Conflicts	 	49
	SECTION 3.04	 	Financial Statements; Projections	 	49
	SECTION 3.05	 	Properties	 	50
	SECTION 3.06	 	Intellectual Property	 	50
	SECTION 3.07	 	Equity Interests and Subsidiaries	 	51
	SECTION 3.08	 	Litigation; Compliance with Laws	 	51
	SECTION 3.09	 	Agreements	 	52
	SECTION 3.10	 	Federal Reserve Regulations	 	52
	SECTION 3.11	 	Investment Company Act; Public Utility Holding Company Act	 	52
	SECTION 3.12	 	Use of Proceeds	 	52
	SECTION 3.13	 	Taxes	 	52
	SECTION 3.14	 	No Material Misstatements	 	52
	SECTION 3.15	 	Labor Matters	 	53
	 	 	 	 	 





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	SECTION 3.16	 	Solvency	 	53
	SECTION 3.17	 	Employee Benefit Plans	 	53
	SECTION 3.18	 	Environmental Matters	 	54
	SECTION 3.19	 	Insurance	 	55
	SECTION 3.20	 	Security Documents	 	55
	SECTION 3.21	 	Anti-Terrorism Law	 	55
	SECTION 3.22	 	Subordination of Senior Subordinated Notes	 	56
	

ARTICLE IV
	

CONDITIONS TO CREDIT EXTENSIONS
	

SECTION 4.01	
 	

Conditions to Initial Credit Extension	
 	

56
	SECTION 4.02	 	Conditions to All Credit Extensions	 	59
	

ARTICLE V
	

AFFIRMATIVE COVENANTS
	

SECTION 5.01	
 	

Financial Statements, Reports, etc	
 	

60
	SECTION 5.02	 	Litigation and Other Notices	 	61
	SECTION 5.03	 	Existence; Businesses and Properties	 	61
	SECTION 5.04	 	Insurance	 	62
	SECTION 5.05	 	Obligations and Taxes	 	62
	SECTION 5.06	 	Employee Benefits	 	63
	SECTION 5.07	 	Maintaining Records; Access to Properties and Inspections; Annual Meetings	 	63
	SECTION 5.08	 	Use of Proceeds	 	63
	SECTION 5.09	 	Compliance with Environmental Laws; Environmental Reports	 	63
	SECTION 5.10	 	Interest Rate Protection	 	64
	SECTION 5.11	 	Additional Collateral; Additional Subsidiary Guarantors	 	64
	SECTION 5.12	 	Security Interests; Further Assurances	 	65
	SECTION 5.13	 	Information Regarding Collateral	 	65
	SECTION 5.14	 	Redemption of Outstanding Debt	 	65
	

ARTICLE VI
	

NEGATIVE COVENANTS
	

SECTION 6.01	
 	

Indebtedness	
 	

66
	SECTION 6.02	 	Liens	 	67
	SECTION 6.03	 	Sale and Leaseback Transactions	 	69
	SECTION 6.04	 	Investment, Loan and Advances	 	69
	SECTION 6.05	 	Mergers and Consolidations	 	71
	SECTION 6.06	 	Asset Sales	 	71
	SECTION 6.07	 	Acquisitions	 	72
	SECTION 6.08	 	Dividends	 	72
	SECTION 6.09	 	Transactions with Affiliates	 	73
	SECTION 6.10	 	Financial Covenants	 	73
	SECTION 6.11	 	Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other Documents, etc	 	74
	SECTION 6.12	 	Limitation on Certain Restrictions on Subsidiaries	 	74
	SECTION 6.13	 	Limitation on Creation of Subsidiaries	 	75
	SECTION 6.14	 	Business	 	75
	 	 	 	 	 



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	SECTION 6.15	 	Limitation on Accounting Changes	 	75
	SECTION 6.16	 	Fiscal Year	 	75
	SECTION 6.17	 	No Further Negative Pledge	 	75
	SECTION 6.18	 	Anti-Terrorism Law; Anti-Money Laundering	 	75
	SECTION 6.19	 	Embargoed Person	 	76
	

ARTICLE VII
	

GUARANTEE
	

SECTION 7.01	
 	

The Guarantee	
 	

76
	SECTION 7.02	 	Obligations Unconditional	 	76
	SECTION 7.03	 	Reinstatement	 	77
	SECTION 7.04	 	Subrogation; Subordination	 	77
	SECTION 7.05	 	Remedies	 	78
	SECTION 7.06	 	Instrument for the Payment of Money	 	78
	SECTION 7.07	 	Continuing Guarantee	 	78
	SECTION 7.08	 	General Limitation on Guarantee Obligations	 	78
	SECTION 7.09	 	Release of Subsidiary Guarantors	 	78
	SECTION 7.10	 	No Proceedings	 	78
	

ARTICLE VIII
	

EVENTS OF DEFAULT
	

SECTION 8.01	
 	

Events of Default	
 	

79
	

ARTICLE IX
	

THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
	

SECTION 9.01	
 	

Appointment	
 	

81
	SECTION 9.02	 	Agent in Its Individual Capacity	 	81
	SECTION 9.03	 	Exculpatory Provisions	 	81
	SECTION 9.04	 	Reliance by Agent	 	82
	SECTION 9.05	 	Delegation of Duties	 	82
	SECTION 9.06	 	Successor Agent	 	82
	SECTION 9.07	 	Non-Reliance on Agent and Other Lenders	 	83
	SECTION 9.08	 	Name Agents	 	83
	SECTION 9.09	 	Indemnification	 	83
	

ARTICLE X
	

MISCELLANEOUS
	

SECTION 10.01	
 	

Notices	
 	

83
	SECTION 10.02	 	Waivers; Amendment	 	84
	SECTION 10.03	 	Expenses; Indemnity	 	87
	SECTION 10.04	 	Successors and Assigns	 	88
	SECTION 10.05	 	Survival of Agreement	 	90
	SECTION 10.06	 	Counterparts; Integration; Effectiveness	 	91
	SECTION 10.07	 	Severability	 	91
	SECTION 10.08	 	Right of Setoff	 	91
	SECTION 10.09	 	Governing Law; Jurisdiction; Consent to Service of Process	 	91
	SECTION 10.10	 	Waiver of Jury Trial	 	92
	SECTION 10.11	 	Headings	 	92
	 	 	 	 	 





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	SECTION 10.12	 	Confidentiality	 	92
	SECTION 10.13	 	Interest Rate Limitation	 	93
	SECTION 10.14	 	Lender Addendum	 	93
	SECTION 10.15	 	Obligations Absolute	 	93
	

ANNEXES
	
 	

 	
 	

 
	

Annex I	
 	

Applicable Margin	
 	

 
	Annex II	 	Amortization Table	 	 
	

SCHEDULES
	
 	

 	
 	

 
	

Schedule A	
 	

Terms of Dividend Note	
 	

 
	Schedule B	 	Repayment of Outstanding Indebtedness	 	 
	Schedule 3.03	 	Governmental Approvals; Compliance with Laws	 	 
	Schedule 3.06(c)	 	Violations or Proceedings	 	 
	Schedule 3.07(a)	 	Subsidiaries	 	 
	Schedule 3.07(b)	 	Consents	 	 
	Schedule 3.07(c)	 	Corporate Organizational Chart	 	 
	Schedule 3.08	 	Litigation	 	 
	Schedule 3.15	 	Labor Matters	 	 
	Schedule 3.17	 	ERISA	 	 
	Schedule 3.18	 	Environmental Matters	 	 
	Schedule 3.19	 	Insurance	 	 
	Schedule 4.01(g)	 	Local Counsel	 	 
	Schedule 5.13	 	Information Regarding Collateral	 	 
	Schedule 6.01(b)	 	Existing Indebtedness	 	 
	Schedule 6.02(c)	 	Existing Liens	 	 
	Schedule 6.04(b)	 	Existing Investments	 	 
	Schedule 6.07	 	Certain Acquisitions	 	 
	Schedule 6.09	 	Existing Transactions with Affiliates	 	 
	

EXHIBITS
	
 	

 	
 	

 
	

Exhibit A	
 	

Form of Administrative Questionnaire	
 	

 
	Exhibit B	 	Form of Assignment and Assumption	 	 
	Exhibit C	 	Form of Borrowing Request	 	 
	Exhibit D	 	Form of Compliance Certificate	 	 
	Exhibit E	 	Form of Interest Election Request	 	 
	Exhibit F	 	Form of Joinder Agreement	 	 
	Exhibit G	 	Form of LC Request	 	 
	Exhibit H	 	Form of Lender Addendum	 	 
	Exhibit I-1	 	Form of Tranche A Term Note	 	 
	Exhibit I-2	 	Form of Tranche B Term Note	 	 
	Exhibit I-3	 	Form of Revolving Note	 	 
	Exhibit I-4	 	Form of Swingline Note	 	 
	Exhibit J	 	Form of Pledge Agreement	 	 
	Exhibit K-1	 	Form of Opinion of Company Counsel	 	 
	Exhibit K-2	 	Form of Opinion of Local Counsel	 	 
	Exhibit L	 	Form of Solvency Certificate	 	 
	Exhibit M	 	Form of Intercompany Note	 	 
	Exhibit N	 	Form of Non-Bank Certificate	 	 




iv








CREDIT AGREEMENT  


        This CREDIT AGREEMENT (as amended, modified or otherwise supplemented from time to time in accordance herewith, this
"Agreement") dated as of [            ], 2004, among ADESA, INC., a Delaware corporation
("Borrower"), the Subsidiary Guarantors (such term and each other capitalized term used but not defined herein having the meaning given to it in  Article I), the Lenders, UBS SECURITIES LLC and MERRILL LYNCH & CO., as joint lead arrangers (in such capacity, each an
"Arranger" and, together, the "Arrangers"), BANK ONE, N.A., GENERAL ELECTRIC CAPITAL CORPORATION,
KEYBANK NATIONAL ASSOCIATION, SUNTRUST BANK and U.S. BANK NATIONAL ASSOCIATION, as co-documentation agents (in such capacity, each a "Documentation
Agent" and, together, the "Documentation Agents"), MERRILL LYNCH & CO., as syndication agent (in such capacity,
"Syndication Agent"), UBS LOAN FINANCE LLC, as swingline lender (in such capacity, "Swingline Lender"),
and UBS AG, STAMFORD BRANCH, as issuing bank (in such capacity, "Issuing Bank"), as administrative agent (in such capacity,
"Administrative Agent") for the Lenders and as collateral agent (in such capacity, "Collateral Agent")
for the Secured Parties and the Issuing Bank. 


WITNESSETH:  


        WHEREAS, Borrower proposes to (i) distribute a $100.0 million dividend to its sole shareholder, ALLETE, Inc.
("ALLETE") in the form of a demand promissory note in the principal amount of $100.0 million having the terms set forth on  Schedule A hereto (the
"Dividend Note"), (ii) repay $200.2 million of its
outstanding debt, as described on Schedule B hereto, (iii) repay $         million of intercompany debt owed to ALLETE and
its affiliates, as described on Schedule B hereto and (iv) repurchase shares of its common stock from certain ALLETE employee benefit
plans for an approximate purchase price of $130.0 million. 


        WHEREAS,
the IPO and the Senior Subordinated Notes Offering shall be consummated simultaneously with the Initial Funding Date. 


        WHEREAS,
Borrower has requested the Lenders to extend credit in the form of (a) Term Loans on the Initial Funding Date, in an aggregate principal amount not in excess of
$375,000,000, and (b) Revolving Loans at any time and from time to time prior to the Revolving Maturity Date, in an aggregate principal amount at any time outstanding not in excess of
$150,000,000. 


        WHEREAS,
Borrower has requested the Swingline Lender to make Swingline Loans, at any time and from time to time prior to the Revolving Maturity Date, in an aggregate principal amount at
any time outstanding not in excess of $30,000,000. 


        WHEREAS,
Borrower has requested the Issuing Bank to issue letters of credit, in an aggregate face amount at any time outstanding not in excess of $25,000,000, to support payment
obligations incurred in the ordinary course of business by Borrower and its Subsidiaries. 


        WHEREAS,
the proceeds of the Loans are to be used in accordance with Section 3.12. 


        NOW,
THEREFORE, the Lenders are willing to extend such credit to Borrower and the Issuing Bank is willing to issue letters of credit for the account of Borrower on the terms and subject
to the conditions set forth herein. Accordingly, the parties hereto agree as follows: 


ARTICLE I  


 DEFINITIONS  


        SECTION 1.01    Defined Terms.    As used in this Agreement, the
following terms shall have the meanings specified below: 



        "ABR," when used in reference to any Loan or Borrowing, is used when such Loan, or the Loans comprising such Borrowing, is bearing
interest at a rate determined by reference to the Alternate Base Rate. 









 

        "ABR Borrowing" shall mean a Borrowing comprised of ABR Loans. 


        "ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan. 


        "ABR Revolving Loan" shall mean any Revolving Loan bearing interest at a rate determined by reference to the Alternate Base Rate in
accordance with the provisions of Article II. 



        "ABR Term Loan" shall mean any Term Loan bearing interest at a rate determined by reference to the Alternate Base Rate in accordance with
the provisions of Article II. 


        "Acquisition Consideration" shall mean the purchase consideration for any Permitted Acquisition and all other payments by Borrower or any
of its Subsidiaries in exchange for, or as part of, or in connection with, any Permitted Acquisition, whether paid in cash or by exchange of Equity Interests or of properties or otherwise and whether
payable at or prior to the consummation of such Permitted Acquisition or deferred for payment at any future time, whether or not any such future payment is subject to the occurrence of any
contingency, and includes any and all payments representing the purchase price and any assumptions of Indebtedness, "earn-outs" and other agreements to make any payment the amount of which
is, or the terms of payment of which are, in any respect subject to or contingent upon the revenues, income, cash flow or profits (or the like) of any person or business;  provided that any such future
payment that is subject to a contingency shall be considered Acquisition Consideration only to the extent of the reserve,
if any, required under GAAP at the time of such sale to be established in respect thereof by Borrower or any of its Subsidiaries. 


        "Adjusted LIBOR Rate" shall mean, with respect to any Eurodollar Borrowing for any Interest Period, (a) an interest rate per annum
(rounded upward, if necessary, to the nearest 1/100th of 1%) determined by the Administrative Agent to be equal to the LIBOR Rate for such Eurodollar Borrowing in effect for such Interest Period
divided by (b) 1 minus the Statutory Reserves (if any) for such Eurodollar Borrowing for such Interest Period. 


        "Administrative Agent" shall have the meaning assigned to such term in the preamble hereto and includes each other person appointed as the
successor pursuant to Article IX. 



        "Administrative Agent Fee" shall have the meaning assigned to such term in  Section 2.05(b). 


        "Administrative Questionnaire" shall mean an Administrative Questionnaire in the form of  Exhibit A, or such other form as may be supplied from time to time by the
Administrative Agent. 


        "Affiliate" shall mean, when used with respect to a specified 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; provided,  however, that, for purposes of Section 6.09, the term
"Affiliate" shall also include any person that directly or indirectly owns more than 10% of any class of Equity Interests of the person specified. 


        "Agents" shall mean each Arranger, the Documentation Agents, the Syndication Agent, the Administrative Agent and the Collateral Agent; and
"Agent" shall mean any of them. 


        "Agreement" shall have the meaning assigned to such term in the preamble hereto. 


        "ALLETE" shall have the meaning assigned to such term in the first recital hereto. 


        "Alternate Base Rate" shall mean, for any day, a rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
greater of (a) the Base Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 0.50%. If the
Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient quotations in 



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accordance
with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the preceding sentence until the circumstances giving rise to
such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Base Rate or the Federal Funds Effective Rate shall be effective on the effective date of such change in
the Base Rate or the Federal Funds Effective Rate, respectively. 


        "Anti-Terrorism Laws" shall have the meaning assigned to such term in  Section 3.21. 


        "Applicable Fee" shall mean, for any day, with respect to any Commitment, the applicable percentage set forth in  Annex I under the caption "Applicable Fee." 



        "Applicable Margin" shall mean, for any day, with respect to any Revolving Loan, Tranche A Loan or Tranche B Loan, as the
case may be, the applicable percentage set forth in Annex I under the appropriate caption. 


        "Approved Fund" shall mean any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or
(c) an entity or an Affiliate of an entity that administers or manages a Lender. 


        "Arranger" shall have the meaning assigned to such term in the preamble hereto. 



        "Asset Sale" shall mean (a) any conveyance, sale, lease, sublease, assignment, transfer or other disposition (including by way of
merger or consolidation and including any Sale and Leaseback Transaction) of any property excluding (i) sales of inventory and dispositions of cash equivalents, in each case, in the ordinary
course of business, (ii) sales and/or assignments of receivables and related security interests from Automotive Finance Corporation to AFC Funding Corporation and sales and/or assignments of
receivables and related security interests by AFC Funding Corporation under the Receivables Purchase Agreement, and (iii) sales and/or assignments of receivables and related security interests
from a new SPE formed in accordance with Section 5.11, by Borrower or any of its Subsidiaries and (b) any issuance or sale of any Equity
Interests (other than directors' qualifying shares) of any Subsidiary of Borrower, in each case, to any person other than (i) Borrower, (ii) any Subsidiary Guarantor or
(iii) other than for purposes of Section 6.06, any other Subsidiary. 


        "Assignment and Assumption" shall mean an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of
any party whose consent is required by Section 10.04(b)), and accepted by the Administrative Agent, substantially in the form of  Exhibit B, or
such other form as shall be approved by the Administrative Agent. 


        "Attributable Indebtedness" shall mean, when used with respect to any Sale and Lease-back Transaction, as at the time of
determination, the present value (discounted at a rate equivalent to Borrower's then current weighted average cost of funds for borrowed money as at the time of determination, compounded on a
semiannual basis) of the total obligations of the lessee for rental payments during the remaining term of the lease included in any such Sale and Leaseback Transaction. 



        "Base Rate" shall mean, for any day, a rate per annum that is equal to the corporate base rate of interest established by the
Administrative Agent from time to time; each change in the Base Rate shall be effective on the date such change is effective. The corporate base rate is not necessarily the lowest rate charged by the
Administrative Agent to its customers. 


        "Board" shall mean the Board of Governors of the Federal Reserve System of the United States. 



        "Board of Directors" shall mean, with respect to any person, (i) in the case of any corporation, the board of directors of such
person, (ii) in the case of any limited liability company, 



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the
board of managers of such person, (iii) in the case of any partnership, the Board of Directors of the general partner of such person and (iv) in any other case, the functional
equivalent of the foregoing. 


        "Borrower" shall have the meaning assigned to such term in the preamble hereto. 


        "Borrowing" shall mean (a) Loans of the same Class and Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (b) a Swingline Loan. 


        "Borrowing Request" shall mean a request by Borrower in accordance with the terms of  Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be
approved by the Administrative Agent. 


        "Business Day" shall mean any day other than a Saturday, Sunday or other day on which banks in New York City are authorized or required by
law to close; provided, however, that when used in connection with a Eurodollar Loan, the term "Business
Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market. 


        "Canadian Company" shall mean any Company formed under the laws of Canada or any province thereof and whose Equity Interests (or a portion
thereof) are pledged as collateral under any Security Document. 


        "Capital Expenditures" shall mean, for any period, without duplication, the increase during that period in the gross property, plant,
equipment account in the consolidated balance sheet of Borrower and its Subsidiaries or in intangibles related to internally developed software, in each case as determined in accordance with GAAP,
whether such increase is due to purchase of properties for cash or financed by the incurrence of Indebtedness, but excluding (i) expenditures made in connection with the replacement,
substitution, restoration of property or reinvestment in fixed or capital assets pursuant to Section 2.10(c) or  (d), (ii) any portion of such
increase attributable solely to acquisitions of property, plant and equipment in Permitted Acquisitions and
(iii) the two airplanes and real estate acquired from ALLETE pursuant to Section 6.07(g). 


        "Capital Lease Obligations" of any person shall mean the obligations of such person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance
sheet of such person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP, excluding the Lease Agreement, dated December 1,
2002, between Development Authority of Fulton County and ADESA Atlanta, LLC, and any amendments, supplements, modifications or replacements thereof relating to the Company's facility in Fulton County,
Atlanta, Georgia. 


        "Cash Equivalents" shall mean, (1) as to any person, (a) securities issued, or directly, unconditionally and fully
guaranteed or insured, by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than one year from the date of acquisition by such person; (b) time deposits and certificates of deposit of any Lender or any
commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia having,
capital and surplus aggregating in excess of $500.0 million and a rating of "A" (or such other similar equivalent rating) or higher by at least one nationally recognized statistical rating
organization (as defined in Rule 436 under the Securities Act) with maturities of not more than one year from the date of acquisition by such person; (c) repurchase obligations with a
term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with any bank meeting the qualifications specified in clause (b)
above, which repurchase obligations are secured by a valid 



4







 




perfected
security interest in the underlying securities; (d) commercial paper issued by any person incorporated in the United States rated at least A-1 or the equivalent thereof by
Standard & Poor's Rating Service or at least P-I or the equivalent thereof by Moody's Investors Service Inc., and in each case maturing not more than one year after the date
of acquisition by such person; (e) investments in money market funds substantially all of whose assets are comprised of securities of the types described in clauses (a) through
(d) above; and (f) demand deposit accounts maintained in the ordinary course of business; (2) as to any Company formed under the laws of Canada or any province thereof, marketable
direct obligations issued or unconditionally guaranteed by Canada or any agency thereof maturing within one year of acquisition thereof or securities issued by any Canadian Governmental Authority; and
(3) as to any Company formed under the laws of Mexico or any state thereof, marketable direct obligations issued or unconditionally guaranteed by Mexico or any agency thereof maturing within
one year of acquisition thereof or securities issued by any Mexican Governmental Authority, in an amount at any time not to exceed the United States dollar equivalent of $5.0 million. 


        "Cash Interest Expense" shall mean, for any period, Consolidated Interest Expense for such period,  less the sum of (a) interest on any debt paid by the increase in
the principal amount of such debt including by issuance of additional debt of
such kind, (b) items described in clause (b) or, other than to the extent paid in cash, clause (f) of the definition of "Consolidated Interest Expense" and (c) gross
interest income of Borrower and its Subsidiaries (excluding interest income on finance receivables) for such period. 


        "Casualty Event" shall mean any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking
(including by any Governmental Authority) of, any property of Borrower or any of its Subsidiaries. "Casualty Event" shall include but not be limited to any taking of all or any part of any Real
Property of any person or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any law, or by reason of the temporary requisition of the use or occupancy of all or
any part of any Real Property of any person or any part thereof by any Governmental Authority, civil or military, or any settlement in lieu thereof. 


        "CERCLA" shall mean the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §
9601 et seq. 


        A
"Change in Control" shall be deemed to have occurred if: 



        (a)   at
any time a "change of control" occurs as defined in any other Material Indebtedness; 


        (b)   any
"person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than ALLETE, is or becomes the beneficial owner (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause such person or group shall be deemed to have "beneficial ownership" of all
securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of Voting Stock of Borrower
representing more than 35% of the voting power of the total outstanding Voting Stock of Borrower; or 


        (c)   during
any period of two consecutive years following consummation of the IPO, individuals who at the beginning of such period constituted the Board of Directors of
Borrower (together with any new directors whose election to such Board of Directors or whose nomination for election was approved by a vote of a majority of the members of the Board of Directors of
Borrower, which members comprising such majority are then still in office and were either directors at the beginning of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute at least a majority of the Board of Directors of Borrower. 




5







 






        "Change in Law" shall mean (a) the adoption of any law, treaty, order, rule or regulation after the date of this Agreement,
(b) any change in any law, treaty, order, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or
(c) compliance by any Lender or Issuing Bank (or for purposes of Section 2.12(b), by any lending office of such Lender or by such Lender's
or Issuing Bank's holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement. 


        "Charges" shall have the meaning assigned to such term in Section 10.13. 



        "Class," when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Tranche A Loans, Tranche B Loans or Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, Tranche A Commitment,
Tranche B Commitment or Swingline Commitment, in each case, under this Agreement as originally in effect or pursuant to Section 10.02(e), of
which such Loan, Borrowing or Commitment shall be a part. 


        "Closing Date" shall mean the date hereof. 


        "Code" shall mean the Internal Revenue Code of 1986, as amended from time to time. 


        "Collateral" shall mean, collectively, all of the Collateral under the Pledge Agreement and all other property of whatever kind and nature
pledged as collateral under any Security Document. 


        "Collateral Agent" shall have the meaning assigned to such term in the preamble hereto. 



        "Commercial Letter of Credit" shall mean any letter of credit or similar instrument issued for the purpose of providing credit support in
connection with the purchase of materials, goods or services by Borrower or any of its Subsidiaries in the ordinary course of their businesses. 


        "Commitment" shall mean, with respect to any Lender, such Lender's Revolving Commitment, Tranche A Commitment, Tranche B Commitment or
Swingline Commitment, and any Commitment to make Term Loans or Revolving Loans of a new Class extended by such Lender as provided in  Section 10.02(e). 



        "Commitment Fee" shall have the meaning assigned to such term in Section 2.05(a). 


        "Companies" shall mean Borrower and its Subsidiaries; and "Company" shall mean any one of
them. 


        "Compliance Certificate" shall mean a certificate of a Financial Officer substantially in the form of  Exhibit D. 



        "Confidential Information Memorandum" shall mean that certain confidential information memorandum dated as of March 2004. 


        "Consolidated Amortization Expense" shall mean, for any period, the amortization expense of Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP. 


        "Consolidated Depreciation Expense" shall mean, for any period, the depreciation expense of Borrower and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP. 


        "Consolidated EBITDA" shall mean, for any period, Consolidated Net Income for such period, adjusted by
(x) adding thereto, in each case only to the extent (and in the same proportion) deducted in determining such Consolidated Net Income (and with
respect to the portion of Consolidated Net Income attributable to any Subsidiary of Borrower only if a corresponding 



6







 




amount
would be permitted at the date of determination to be distributed to Borrower by such Subsidiary without prior approval (that has not been obtained), pursuant to the terms of its Organizational
Documents and all agreements, instruments, judgments, decrees, orders, statutes, rules and regulations applicable to such Subsidiary or its equityholders): 



        (a)   Consolidated
Interest Expense for such period, 


        (b)   Consolidated
Amortization Expense for such period, 



        (c)   Consolidated
Depreciation Expense for such period, 


        (d)   Consolidated
Tax Expense for such period, 


        (e)   the
aggregate amount of all expenses related to options, employee stock option plans or employee stock purchase plans reducing Consolidated Net Income, 


        (f)    costs
and expenses directly incurred in connection with the Transactions (not to exceed $[    ] million), and 



        (g)   the
aggregate amount of all other noncash items reducing Consolidated Net Income (excluding any noncash charge that results in an accrual of a reserve for cash charges
in any future period) for such period, and 




(y) subtracting therefrom the aggregate amount of all noncash items increasing Consolidated Net Income (other than the accrual of revenue or
recording of receivables in the ordinary course of business) for such period. 


        Consolidated
EBITDA shall be calculated on a Pro Forma Basis to give effect to any Permitted Acquisition and Asset Sales (other than any dispositions in the ordinary course of business)
consummated at any time on or after the first day of the Test Period thereof as if each such Permitted Acquisition had been effected on the first day of such period and as if each such Asset Sale had
been consummated on the day prior to the first day of such period. 


        "Consolidated Fixed Charge Coverage Ratio" shall mean, for any Test Period, the ratio of (a) Consolidated EBITDA for such Test
Period to (b) Consolidated Fixed Charges for such Test Period. 


        "Consolidated Fixed Charges" shall mean, for any period, the sum, without duplication, of 



        (a)   Cash
Interest Expense for such period; 


        (b)   the
aggregate amount of Capital Expenditures for such period (other than to the extent financed by Equity Interests); 


        (c)   all
cash payments in respect of income taxes made during such period (net of any cash refund in respect of income taxes actually received during such period); 



        (d)   the
principal amount of all scheduled amortization payments on all Indebtedness (including the principal component of all Capital Lease Obligations, but excluding such
amortization payments on Indebtedness incurred to finance Capital Expenditures included in clause (b) above in such period or any prior period) of Borrower and its Subsidiaries for such period
(as determined on the first day of the respective period); 


        (e)   the
product of (i) all cash dividend payments on any series of Disqualified Capital Stock of Borrower or any of its Subsidiaries (other than dividend payments to
Borrower or any of its Subsidiaries) multiplied by (ii) a fraction, the numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of Borrower and its Subsidiaries, expressed as a decimal; 




7







 





        (f)    the
product of (i) all cash dividend payments on any Preferred Stock (other than Disqualified Capital Stock) of Borrower or any of its Subsidiaries (other than
dividend payments to Borrower or any of its Subsidiaries) multiplied by (ii) a fraction, the numerator of which is one and the denominator of
which is one minus the then current combined federal, state and local statutory tax rate of Borrower and its Subsidiaries, expressed as a decimal; and 


        (g)   all
cash dividend payments on Qualified Capital Stock of Borrower. 




        "Consolidated Indebtedness" shall mean, as at any date of determination, the aggregate amount of all Indebtedness and all LC Exposure of
Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP; provided that for purposes of this definition
(1) Hedging Obligations shall be included in Consolidated Indebtedness only to the extent such Hedging Obligations exceed $10.0 million in the aggregate and (2) Consolidated
Indebtedness shall not include any obligations under the Receivables Purchase Agreement or under a receivables purchase agreement in connection with a future SPE resulting from a change in the
characterization of such obligations under GAAP. 


        "Consolidated Interest Coverage Ratio" shall mean, for any Test Period, the ratio of (x) Consolidated EBITDA for such Test Period
to (y) Consolidated Interest Expense for such Test Period. 


        "Consolidated Interest Expense" shall mean, for any period, the total consolidated interest expense of Borrower and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP plus, without duplication: 



        (a)   imputed
interest on Capital Lease Obligations and Attributable Indebtedness of Borrower and its Subsidiaries for such period; 



        (b)   amortization
of debt issuance costs, debt discount or premium and other financing fees and expenses incurred by Borrower or any of its Subsidiaries for such period; 


        (c)   cash
contributions to any employee stock ownership plan or similar trust made by Borrower or any of its Subsidiaries to the extent such contributions are used by such
plan or trust to pay interest or fees to any person (other than Borrower or a Wholly Owned Subsidiary) in connection with Indebtedness incurred by such plan or trust for such period; 


        (d)   all
interest paid or payable with respect to discontinued operations of Borrower or any of its Subsidiaries for such period, 



        (e)   the
interest portion of any deferred payment obligations of Borrower or any of its Subsidiaries for such period; 


        (f)    all
interest on any Indebtedness of Borrower or any of its Subsidiaries of the type described in clause (f) or (k) of the definition of "Indebtedness" for
such period; 




provided that (a) to the extent directly related to the Transactions or Permitted Acquisitions or costs incurred by Automotive Finance
Corporation in connection with any amendment to the Receivables Purchase Agreement, debt issuance costs, debt discount or premium and other financing fees and expenses (including up to
$1.0 million of such costs incurred in connection with the redemption of the Indebtedness set forth on Schedule B) shall be excluded from
the calculation of Consolidated Interest Expense and (b) Consolidated Interest Expense shall be calculated after giving effect to Hedging Agreements (including associated costs), but excluding
unrealized gains and losses with respect to Hedging Agreements, and, provided, further, that
notwithstanding anything to the contrary, any commercial paper discount associated with sales of receivables by Automotive Finance Corporation under the Receivables Purchase Agreement or the Purchase
and Sale Agreement in accordance with GAAP shall not constitute Consolidated Interest Expense. 



8







 

        Consolidated
Interest Expense shall be calculated on a Pro Forma Basis to give effect to any Indebtedness incurred, assumed or permanently repaid or extinguished during the relevant Test
Period in connection with any Permitted Acquisitions and Asset Sales (other than any dispositions in the
ordinary course of business) as if such incurrence, assumption, repayment or extinguishing had been effected on the first day of such period; provided
that for any Test Period ending on or prior to the first anniversary of the Initial Funding Date, Consolidated Interest Expense shall be equal to the product of (x) Consolidated Interest
Expense for the period from and after the Closing Date to and including the last day of such Test Period times (y) a fraction, the numerator of which is 365 and the denominator of which is the
number of days elapsed from and including the Closing Date to and including the last day of such Test Period. 


        "Consolidated Net Income" shall mean, for any period, the consolidated net income (or loss) of Borrower and its Subsidiaries determined on
a consolidated basis in accordance with GAAP; provided that there shall be excluded from such net income (to the extent otherwise included therein),
without duplication: 



        (a)   the
net income (or loss) of any person (other than a Subsidiary of Borrower) in which any person other than Borrower and its Subsidiaries has an ownership interest,
except to the extent that cash in an amount equal to any such income has actually been received by Borrower or (subject to clause (b) below) any of its Subsidiaries during such period;  provided
that, notwithstanding the foregoing, the net income (or loss) of EndTrust Lease End Services, LLC shall be included in net income to the extent
permitted by GAAP; 


        (b)   the
net income of any Subsidiary of Borrower during such period to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of
that income is not permitted by operation of the terms of its Organizational Documents or any agreement, instrument, judgment, decree, order, statute, rule or regulation applicable to that Subsidiary
during such period, except that Borrower's equity in net loss of any such Subsidiary for such period shall be included in determining Consolidated Net Income; 


        (c)   any
gain (or loss), together with any related provisions for taxes on any such gain (or the tax effect of any such loss), realized during such period by Borrower or any
of its Subsidiaries upon any Asset Sale (other than any dispositions in the ordinary course of business) by Borrower or any of its Subsidiaries; 


        (d)   gains
and losses due solely to fluctuations in currency values and the related tax effects determined in accordance with GAAP for such period; 


        (e)   earnings
resulting from any reappraisal, revaluation or write-up of assets; and 



        (f)    any
extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss), together with any related provision for taxes on any such gain (or the tax effect of any
such loss), recorded or recognized by Borrower or any of its Subsidiaries during such period. 




        For
purposes of this definition of "Consolidated Net Income," "nonrecurring" means any gain or loss as of any date that is not reasonably
likely to recur within the two years following such date; provided that if there was a gain or loss similar to such gain or loss within the two years
preceding such date, such gain or loss shall not be deemed nonrecurring. 



        "Consolidated Tax Expense" shall mean, for any period, the tax expense of Borrower and its Subsidiaries, for such period, determined on a
consolidated basis in accordance with GAAP. 


        "Contingent Obligation" shall mean, as to any person, any obligation, agreement, understanding or arrangement of such person guaranteeing
or intended to guarantee any Indebtedness, leases, dividends or other obligations ("primary obligations") of any other person (the
"primary obligor") in any manner, whether directly or indirectly, including any obligation of 



9







 




such
person, whether or not contingent, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor; (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation; (d) with respect to bankers' acceptances, letters of credit and similar credit arrangements, until a reimbursement obligation arises (which
reimbursement obligation shall constitute Indebtedness); or (e) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof;  provided, however, that the term "Contingent Obligation" shall not include endorsements of instruments
for deposit or collection in the ordinary course of business or any product warranties. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation is made (or, if less, the maximum amount of such primary obligation for which such person may be liable, whether singly
or jointly, pursuant to the terms of the instrument evidencing such Contingent Obligation) or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming
such person is required to perform thereunder) as determined by such person in good faith. 


        "Control" shall mean 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 ownership of voting securities, by contract or otherwise, and the terms "Controlling" and
"Controlled" shall have meanings correlative thereto. 



        "Credit Extension" shall mean, as the context may require, (i) the making of a Loan by a Lender or (ii) the issuance of any
Letter of Credit, or the amendment, extension or renewal of any existing Letter of Credit, by the Issuing Bank. 


        "Default" shall mean any event, occurrence or condition which is, or upon notice, lapse of time or both would constitute, an Event of
Default. 


        "Default Excess" shall mean with respect to any Defaulting Lender, the excess, if any, of such Defaulting Lender's ratable percentage of
the aggregate outstanding principal amount of Loans of all Lenders (calculated as if all Defaulting Lenders (other than such Defaulting Lender) had funded all of their respective Defaulted Loans) over
the aggregate outstanding principal amount of all Loans of such Defaulting Lender. 


        "Default Period" shall mean with respect to any Defaulting Lender, the period commencing on the date of the applicable Funding Default and
ending on the earliest of the following dates: (i) the date on which all Commitments are cancelled or terminated and/or all amounts due with respect to the Loans are declared or become
immediately due and payable, (ii) the date on which (a) the Default Excess with respect to such Defaulting Lender shall have been reduced to zero (whether by the funding by such
Defaulting Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any optional or mandatory prepayments of the Loans in accordance with the terms of  Section 2.10) and (b) such Defaulting Lender shall have delivered to Borrower and the Administrative Agent a written reaffirmation of its
intention to honor its obligations hereunder with respect to its Commitments, and (iii) the date on which Borrower, the Administrative Agent and the Requisite Lenders waive all Funding Defaults
of such Defaulting Lender in writing. 


        "Default Rate" shall have the meaning assigned to such term in Section 2.06(c). 



        "Defaulted Loans" shall have the meaning assigned to such term in Section 2.16(b). 


        "Defaulting Lender" shall have the meaning assigned to such term in  Section 2.16(b). 



10













  



        "Disqualified Capital Stock" shall mean any Equity Interest which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part, on or prior to the first anniversary of the Final
Maturity Date except upon the occurrence of a Change in Control, (b) is convertible into or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or
(ii) any Equity Interests referred to in (a) above, in each case at any time on or prior to the first anniversary of the Final Maturity Date, or (c) contains any repurchase
obligation which may come into effect prior to payment in full of all Obligations except upon the occurrence of a Change in Control. 


        "Dividend" with respect to any person shall mean that such person has declared or paid a dividend or returned any equity capital to the
holders of its Equity Interests or authorized or made any other distribution, payment or delivery of property (other than Qualified Capital Stock of such person) or cash to the holders of its Equity
Interests as such, or redeemed, retired, purchased or otherwise acquired, directly or indirectly, for consideration any of its Equity Interests outstanding (or any options or warrants issued by such
person with respect to its Equity Interests), or set aside any funds for any of the foregoing purposes, or shall have permitted any of its Subsidiaries to purchase or otherwise acquire for
consideration any of the Equity Interests of such person outstanding (or any options or warrants issued by such person with respect to its Equity Interests); it being understood that payments to
holders of Equity Interests pursuant to any agreement or contract set forth on Schedule 6.09 shall not constitute "Dividends." 



        "Dividend Note" shall have the meaning assigned to such term in the first recital hereto. 


        "Documentation Agents" shall have the meaning assigned to such term in the preamble hereto. 


        "dollars" or "$" shall mean lawful money of the United States. 


        "Domestic Subsidiary" shall mean any Subsidiary that is organized or existing under the laws of the United States, any state thereof or
the District of Columbia. 


        "Eligible Assignee" shall mean (a) a Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any
other person (other than a natural person) approved by (i) the Administrative Agent, (ii) in the
case of any assignment of a Revolving Commitment, the Issuing Bank and the Swingline Lender, and (iii) unless an Event of Default has occurred and is continuing, Borrower (each such approval
not to be unreasonably withheld or delayed); provided that notwithstanding the foregoing, "Eligible Assignee" shall not include Borrower or any of
Borrower's Affiliates or Subsidiaries. 


        "Embargoed Person" shall have the meaning assigned to such term in Section 6.19. 


        "Environment" shall mean ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land
surface or subsurface strata, natural resources, the workplace or as otherwise defined in any Environmental Law. 


        "Environmental Claim" shall mean any claim, notice, demand, order, action, suit, proceeding or other communication alleging liability for
investigation, remediation, removal, cleanup, response, corrective action, damages to natural resources, personal injury, property damage, fines, penalties or other costs resulting from, related to or
arising out of (i) the presence, Release or threatened Release in or into the Environment of Hazardous Material at any location or (ii) any violation of Environmental Law, and shall
include any claim seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from, related to or arising out of the 



11







 




presence,
Release or threatened Release of Hazardous Material or alleged injury or threat of injury to health, safety or the Environment. 



        "Environmental Law" shall mean any and all applicable present and future treaties, laws, statutes, ordinances, regulations, rules,
decrees, orders, judgments, consent orders, consent decrees or other binding requirements, and the common law, relating to protection of public health or the Environment, the Release or threatened
Release of Hazardous Material, natural resources or natural resource damages, or occupational safety or health. 


        "Environmental Permit" shall mean any permit, license, approval, consent or other authorization required by or from a Governmental
Authority under Environmental Law. 


        "Equity Interest" shall mean, with respect to any person, any and all shares, interests, participations or other equivalents, including
membership interests (however designated, whether voting or nonvoting), of equity of such person, including, if such person is a partnership, partnership interests (whether general or limited) and any
other interest or participation that confers on a person the right to receive a share of the profits and losses of, or distributions of property of, such partnership, whether outstanding on the date
hereof or issued after the Closing Date, but excluding debt securities convertible or exchangeable into such equity. 



        "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as the same may be amended from time to time. 


        "ERISA Affiliate" shall mean, with respect to any person, any trade or business (whether or not incorporated) that, together with such
person, is treated as a single employer under Section 414(b) or (c) of the Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code. 


        "ERISA Event" shall mean (a) any "reportable event," as defined in Section 4043 of ER-ISA or the regulations
issued thereunder, with respect to a Plan (other than an event for which the 30-day notice period is waived by regulation); (b) the existence with respect to any Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived, the failure to make by its due date a required installment under
Section 412(m) of the Code with respect to any Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by any Company or any of its ER-ISA
Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by any Company or any of its ERISA Affiliates from the PBGC or a plan
administrator of any notice relating to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, or the occurrence of any event or condition which could reasonably
be expected to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (f) the incurrence by any Company or any of its ERISA Affiliates
of any liability with respect to the withdrawal from any Plan or Multiemployer Plan; (g) the receipt by any Company or its ERISA Affiliates of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (h) the making of any
amendment to any Plan which could result in the imposition of a lien or the posting of a bond or other security; and (i) the occurrence of a nonexempt prohibited transaction (within the meaning
of Section 4975 of the Code or Section 406 of ERISA) which could reasonably be expected to result in liability to any Company. 


        "Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar Loans. 


        "Eurodollar Loan" shall mean any Eurodollar Revolving Loan or Eurodollar Term Loan. 



12







 




        "Eurodollar Revolving Borrowing" shall mean a Borrowing comprised of Eurodollar Revolving Loans. 


        "Eurodollar Revolving Loan" shall mean any Revolving Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate in
accordance with the provisions of Article II. 



        "Eurodollar Term Loan" shall mean any Term Loan bearing interest at a rate determined by reference to the Adjusted LIBOR Rate in
accordance with the provisions of Article II. 


        "Event of Default" shall have the meaning assigned to such term in Article VIII. 


        "Excess Amount" shall have the meaning assigned to such term in  Section 2.10(e)(ii). 



        "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. 


        "Excluded Taxes" shall mean, with respect to the Administrative Agent, any Lender, the Issuing Bank or any other recipient of any payment
to be made by or on account of any obligation of Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, and (b) in the case
of a Foreign Lender (other than an assignee pursuant to a request by Borrower under Section 2.16), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Foreign Lender's failure to comply with  Section 2.15(e),
 except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new
lending office (or assignment), to receive additional amounts from Borrower with respect to such withholding tax pursuant to Section 2.15(a) (it
being understood and agreed, for the avoidance of doubt, that any withholding tax imposed on a Foreign Lender as a result of a Change in Law or regulation or interpretation thereof occurring after the
time such Foreign Lender became a party to this Agreement or designated a new lending office shall not be an Excluded Tax). 


        "Executive Order" shall have the meaning assigned to such term in Section 3.21. 


        "Executive Orders" shall have the meaning assigned to such term in Section 6.19. 



        "Existing Lien" shall have the meaning assigned to such term in Section 6.02(c). 


        "Federal Funds Effective Rate" shall mean, for any day, the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System of the United States arranged by federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate
is not so published for any day that is a Business Day, the average of the quotations for the day for such transactions received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it. 


        "Fee Letter" shall mean the confidential Fee Letter, dated March 19, 2004, among Borrower, UBS Loan Finance LLC, UBS Securities
LLC, Merrill Lynch & Co. and Merrill Lynch Capital Corporation. 


        "Fees" shall mean the Commitment Fees, the Administrative Agent Fees, the LC Participation Fees and the Fronting Fees. 


        "Final Maturity Date" shall mean the latest of the Revolving Maturity Date, the Tranche A Maturity Date and the Tranche B Maturity Date. 



        "Financial Officer" of any person shall mean the chief financial officer, principal accounting officer, treasurer or controller of such
person. 



13







 




        "Foreign Lender" shall mean any Lender that is not, for United States federal income tax purposes, (i) a citizen or resident of the
United States, (ii) a corporation or entity treated as a corporation created or organized in or under the laws of the United States, or any political subdivision thereof, (iii) an estate
whose income is subject to U.S. federal income taxation regardless of its source or (iv) a trust if a court within the United States is able to exercise primary supervision over the
administration of such trust and one or more United States persons have the authority to control all substantial decisions of such trust. 


        "Foreign Plan" shall mean any employee benefit plan, program, policy, arrangement or agreement maintained or contributed to by any Company
with respect to employees employed outside the United States. 


        "Foreign Subsidiary" shall mean a Subsidiary that is organized under the laws of a jurisdiction other than the United States or any state
thereof or the District of Columbia. 


        "Fronting Fee" shall have the meaning assigned to such term in Section 2.05(c). 


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


        "Funding Default" shall have the meaning assigned to such term in Section 2.16(b). 



        "GAAP" shall mean generally accepted accounting principles in the United States applied on a consistent basis. 


        "Governmental Authority" shall mean any federal, state, local or foreign court, central bank or governmental agency, authority,
instrumentality or regulatory body or any subdivision thereof. 


        "Governmental Real Property Disclosure Requirements" shall mean any Requirement of Law of any Governmental Authority requiring
notification of the buyer, lessee, mortgagee, assignee or other transferee of any Real Property, facility, establishment or business, or notification, registration or filing to or with any
Governmental Authority, in connection with the sale, lease, mortgage, assignment or other transfer (including any transfer of control) of any Real Property, facility, establishment or business, of the
actual or threatened presence or Release in or into the Environment, or the use, disposal or handling of Hazardous Material on, at, under or near the Real Property, facility, establishment or business
to be sold, leased, mortgaged, assigned or transferred. 


        "Guaranteed Obligations" shall have the meaning assigned to such term in  Section 7.01. 



        "Guarantees" shall mean the guarantees issued pursuant to Article VII by the
Subsidiary Guarantors. 


        "Hazardous Materials" shall mean the following: hazardous substances; hazardous wastes; polychlorinated biphenyls
("PCBs") or any substance or compound containing PCBs; asbestos or any asbestos-containing materials in any form or condition; radon or any other
radioactive materials including any source, special nuclear or by-product material; petroleum, crude oil or any fraction thereof; and any other pollutant or contaminant or chemicals,
wastes, materials, compounds, constituents or substances, subject to regulation or which can give rise to liability under any Environmental Laws. 


        "Hedging Agreement" shall mean any swap, cap, collar, forward purchase or similar agreements or arrangements dealing with interest rates,
currency exchange rates or commodity prices, either generally or under specific contingencies. 



        "Hedging Obligations" shall mean obligations under or with respect to Hedging Agreements. 



14







 




        "Indebtedness" of any person shall mean, without duplication, (a) all obligations of such person for borrowed money or advances;
(b) all obligations of such person evidenced by bonds, debentures, notes or similar instruments; (c) all obligations of such person upon which interest charges are customarily paid or
accrued; (d) all obligations of such person under conditional sale or other title retention agreements relating to property purchased by such person; (e) all obligations of such person
issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable and accrued obligations incurred in the ordinary course of business on normal trade terms and
not overdue by more than 90 days); (f) all Indebtedness of others secured by any Lien on property owned or acquired by such person, whether or not the obligations secured thereby have
been assumed, but limited to the fair market value of such property; (g) all Capital Lease Obligations, Purchase Money Obligations and synthetic lease obligations of such person; (h) all
Hedging Obligations to the extent required to be reflected on a balance sheet of such person; (i) all Attributable Indebtedness of such person; (j) all financial obligations of such
person for the reimbursement of any obligor in respect of letters of credit (including letters of credit for workers' compensation, but excluding any performance obligations), letters of guaranty,
bankers' acceptances and similar credit transactions; and (k) all Contingent Obligations of such person in respect of Indebtedness or obligations of others of the kinds referred to in clauses
(a) through (j) above. The Indebtedness of any person shall include the Indebtedness of any other entity (including any partnership in which such person is a general partner) to the
extent such person is liable therefor as a result of such person's ownership interest in or other relationship with such entity, except (other than in the case of general partner liability) to the
extent that terms of such Indebtedness expressly provide that such person is not liable therefor. 


        "Indemnified Taxes" shall mean Taxes other than Excluded Taxes. 


        "Indemnitee" shall have the meaning assigned to such term in Section 10.03(b). 


        "Information" shall have the meaning assigned to such term in Section 10.12. 



        "Initial Funding Date" shall mean the date of the initial Credit Extension hereunder. 


        "Intellectual Property" shall have the meaning assigned to such term in  Section 3.06(a). 


        "Intercompany Note" shall mean a promissory note substantially in the form of  Exhibit M. 



        "Interest Election Request" shall mean a request by Borrower to convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.08(b), substantially in the form of Exhibit E. 


        "Interest Payment Date" shall mean (a) with respect to any ABR Loan (including Swingline Loans), the last Business Day of each
March, June, September and December to occur during any period in which such Loan is outstanding, (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar Loan with an Interest Period of more than three months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such Interest Period, (c) with respect to any Revolving Loan or Swingline Loan, the Revolving Maturity Date or such earlier
date on which the Revolving Commitments are terminated and (d) with respect to any Term Loan, the Tranche A Maturity Date or Tranche B Maturity Date, as the case may be. 


        "Interest Period" shall mean, with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three or six months (or, if each affected Lender so agrees, nine months) thereafter, as Borrower may elect;  provided that
(a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next
succeeding 



15







 




Business
Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (b) any
Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall
end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of such Borrowing; provided,  however, that an Interest Period shall be limited to
the extent required under Section 2.03(e). 



        "Investments" shall have the meaning assigned to such term in Section 6.04. 


        "IPO" shall mean the underwritten public offering by Borrower of its Equity Interests closing on the Initial Funding Date pursuant to a
registration statement filed with the Securities and Exchange Commission in accordance with the Securities Act. 


        "IPO Documents" shall mean the registration statement and other documentation relating to the IPO. 



        "Issuing Bank" shall mean, as the context may require, (a) UBS AG, Stamford Branch, with respect to Letters of Credit issued by it;
(b) any other Lender that may become an Issuing Bank pursuant to Sections 2.18(j) and (k) with
respect to Letters of Credit issued by such Lender; or (c) collectively, all of the foregoing. 


        "Joinder Agreement" shall mean a joinder agreement substantially in the form of  Exhibit F. 



        "LC Commitment" shall mean the commitment of the Issuing Bank to issue Letters of Credit pursuant to  Section 2.18. The amount of the LC Commitment shall initially
be $25,000,000, but in no event exceed the Revolving Commitment. 


        "LC Disbursement" shall mean a payment or disbursement made by the Issuing Bank pursuant to a Letter of Credit. 


        "LC Exposure" shall mean at any time the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time  plus (b) the aggregate
principal amount of all Reimbursement Obligations outstanding at such time. The LC Exposure of any Revolving Lender at any
time shall mean its Pro Rata Percentage of the aggregate LC Exposure at such time. 


        "LC Participation Fee" shall have the meaning assigned to such term in  Section 2.05(c). 


        "LC Request" shall mean a request by Borrower in accordance with the terms of  Section 2.18(b) and substantially in the form of Exhibit G, or such other form as shall be
approved by the Administrative Agent. 


        "LC Sub-Account" shall mean an account established and maintained by the Administrative Agent for amounts held as cover for
liabilities in respect of Letters of Credit. 


        "Leases" shall mean any and all leases, subleases, tenancies, options, concession agreements, rental agreements, occupancy agreements,
franchise agreements, access agreements and any other agreements (including all amendments, extensions, replacements, renewals, modifications and/or guarantees
thereof), whether or not of record and whether now in existence or hereafter entered into, affecting the use or occupancy of all or any portion of any Real Property. 



        "Lender Addendum" shall mean with respect to any Lender on the Closing Date, a lender addendum in the form of  Exhibit H, to be executed and delivered by such Lender
on the Closing Date as provided in  Section 10.14. 



16







 




        "Lenders" shall mean (a) the financial institutions that have become a party hereto pursuant to a Lender Addendum and
(b) any financial institution that has become a party hereto pursuant to an Assignment and Assumption, other than, in each case, any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Assumption. Unless the context clearly indicates otherwise, the term "Lenders" shall include the Swingline Lender. 


        "Letter of Credit" shall mean any (i) Standby Letter of Credit and (ii) Commercial Letter of Credit, in each case, issued or
to be issued by an Issuing Bank for the account of Borrower pursuant to Section 2.18. 



        "Letter of Credit Expiration Date" shall mean the date which is fifteen days prior to the Revolving Maturity Date. 


        "LIBOR Rate" shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded upward, if necessary, to the nearest 1/100th of 1%) of the offered rates for deposits in dollars with a term comparable to such Interest Period
that appears on the Telerate British Bankers Assoc. Interest Settlement Rates Page (as defined below) at approximately 11:00 a.m., London, England time, on the second full Business Day
preceding the first day of such Interest Period; provided, however, that (i) if no comparable
term for an Interest Period is available, the LIBOR Rate shall be determined using the weighted average of the offered rates for the two terms most nearly corresponding to such Interest Period and
(ii) if there shall at any time no longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page, "LI-BOR Rate" shall mean, with respect to each day during each
Interest Period pertaining to Eurodollar Borrowings comprising part of the same Borrowing, the rate per annum equal to the rate at which the Administrative Agent is offered deposits in dollars at
approximately 11:00 a.m., London, England time, two Business Days prior to the first day of such Interest Period in the London interbank market for delivery on the first day of such Interest
Period for the number of days comprised therein and in an amount comparable to its portion of the amount of such Eurodollar Borrowing to be outstanding during such Interest Period.
"Telerate British Bankers Assoc. Interest Settlement Rates Page" shall mean the display designated as Page 3750 on the Telerate System Incorporated
Service (or such other page as may replace such page on such service for the
purpose of displaying the rates at which dollar deposits are offered by leading banks in the London interbank deposit market). 


        "Lien" shall mean, with respect to any property, (a) any mortgage, deed of trust, lien, pledge, encumbrance, claim, charge,
assignment, hypothecation, security interest or encumbrance of any kind or any filing of any financing statement under the UCC or any other similar notice of Lien under any similar notice or recording
statute of any Governmental Authority, including any easement, right-of-way or other encumbrance on title to Real Property, in each of the foregoing cases whether voluntary or
imposed by law, and any agreement to give any of the foregoing; (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to such property; and (c) in the case of securities, any purchase option, call or similar right
of a third party with respect to such securities. 


        "Loan Documents" shall mean this Agreement, the Letters of Credit, the Notes (if any), the Security Documents, each Hedging Obligation
relating to the Loans entered into with any counter-party that was a Lender or an Affiliate of a Lender at the time such Hedging Obligation was entered into and, solely for purposes of
paragraph (e) of Article VIII hereof, the Fee Letter. 


        "Loan Parties" shall mean Borrower and the Subsidiary Guarantors. 



17







 




        "Loans" shall mean, as the context may require, a Revolving Loan, a Term Loan or a Swingline Loan (and shall include any Replacement Term
Loans and any Loans contemplated by Section 10.02(e)). 


        "Margin Stock" shall have the meaning assigned to such term in Regulation U. 



        "Material Adverse Effect" shall mean (a) a material adverse effect on the business, property, results of operations, prospects or
condition (financial or otherwise) of Borrower and its Subsidiaries, taken as a whole; (b) the material impairment of the ability of the Loan Parties, taken as a whole, to fully and timely
perform any of their material obligations under any Loan Document; (c) the material impairment of the material rights of or benefits or remedies available to the Lenders or the Collateral Agent
under any Loan Document; or (d) a material adverse effect on the Collateral or the Liens in favor of the Collateral Agent (for its benefit and for the benefit of the other Secured Parties) on
the Collateral or the priority of such Liens. 


        "Material Indebtedness" shall mean (a) the Senior Subordinated Notes and (b) any other Indebtedness (other than the Loans
and Letters of Credit) or Hedging Obligations of Borrower or any of its Subsidiaries in an aggregate outstanding principal amount exceeding $10.0 million. For purposes of determining Material
Indebtedness, the "principal amount" in respect of any Hedging Obligations of any Loan Party at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Loan
Party would be required to pay if the related Hedging Agreement were terminated at such time. 



        "Maximum Rate" shall have the meaning assigned to such term in Section 10.13. 


        "Multiemployer Plan" shall mean a multiemployer plan within the meaning of Section 4001(a)(3) or Section 3(37) of ERISA
(a) to which any Company or any ERISA Affiliate is then making or accruing an obligation to make contributions; (b) to which any Company or any ERISA Affiliate has within the preceding
five plan years made contributions; or (c) with respect to which any Company could incur liability. 


        "Net Cash Proceeds" shall mean: 



        (a)   with
respect to any Asset Sale (other than any issuance or sale of Equity Interests), the cash proceeds received by Borrower or any of its Subsidiaries (including cash
proceeds subsequently received (as and when received by Borrower or any of its Subsidiaries) in respect of noncash consideration initially received) net of (i) selling expenses (including
reasonable brokers' fees or commissions, legal, accounting and other professional and transactional fees, transfer and similar taxes and Borrower's good faith estimate of income taxes paid or payable
in connection with such sale); (ii) amounts provided as a reserve, in accordance with GAAP, against (x) any liabilities under any indemnification obligations, escrows or purchase price
adjustments associated with such Asset Sale or (y) any other liabilities retained by Borrower or any of its Subsidiaries associated with the properties sold in such Asset Sale
(provided that, to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Cash Proceeds);
(iii) Borrower's good faith estimate of payments required to be made with respect to un-assumed liabilities relating to the properties sold within 90 days of such Asset Sale
(provided that, to the extent such cash proceeds are not used to make payments in respect of such unassumed liabilities within 90 days of such
Asset Sale, such cash proceeds shall constitute Net Cash Proceeds); and (iv) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money
which is secured by a Lien on the properties sold in such Asset Sale (so long as such Lien was permitted to encumber such properties under the Loan Documents at the time of such sale) and which is
repaid with such proceeds (other than any such Indebtedness assumed by the purchaser of such properties); and 




18







 


        (b)   with
respect to any Casualty Event, the cash insurance proceeds, condemnation awards and other compensation received in respect thereof, net of (i) all reasonable
costs and expenses incurred in connection with the collection of such proceeds, awards or other compensation in respect of such Casualty Event, (ii) all taxes paid or expected to be paid on
such proceeds and (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness for borrowed money which is secured by a Lien on the properties affected
by a Casualty Event (so long as such Lien was permitted to encumber such properties under the Loan Documents) and which is repaid with such proceeds. 




        "Non-Guarantor Subsidiary" shall mean each Subsidiary that is not a Subsidiary Guarantor. 


        "Notes" shall mean any notes evidencing the Term Loans, Revolving Loans or Swingline Loans issued pursuant to this Agreement, if any,
substantially in the form of Exhibit I-1, I-2,  I-3, or I-4. 


        "Obligations" shall mean (a) obligations of Borrower and the other Loan Parties from time to time arising under or in respect of
the due and punctual payment of (i) the principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other
similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by Borrower and the other Loan Parties under this Agreement in respect of any Letter of Credit, when and as due, including payments in respect
of Reimbursement Obligations, interest thereon and obligations to provide cash collateral and (iii) all other monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding), of Borrower and the other Loan Parties under this Agreement and the other Loan Documents, (b) the due and punctual performance of
all covenants, agreements, obligations and liabilities of Borrower and the other Loan Parties under or pursuant to this Agreement and the other Loan Documents, (c) the due and punctual payment
and performance of all obligations of Borrower and the other Loan Parties under each Hedging Agreement relating to the Loans entered into with any counterparty that was a Lender or an Affiliate of a
Lender at the time such Hedging Agreement was entered into and (d) the due and punctual payment and performance of all obligations in respect of overdrafts and related liabilities owed to any
Lender, any Affiliate of a Lender, the Administrative Agent or the Collateral Agent arising from treasury, depositary and cash management services or in connection with any automated clearinghouse
transfer of funds. 


        "OFAC" shall have the meaning assigned to such term in Section 3.21. 


        "Officers' Certificate" shall mean a certificate executed by the chairman of the Board of Directors (if an officer), the chief executive
officer or the president and one of the Financial Officers, each in his or her official (and not individual) capacity. 



        "Organizational Documents" shall mean, with respect to any person, (i) in the case of any corporation, the certificate of
incorporation and by-laws (or similar documents) of such person, (ii) in the case of any limited liability company, the certificate of formation and operating agreement (or similar
documents) of such person, (iii) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such person, (iv) in the
case of any general partnership, the partnership agreement (or similar document) of such person and (v) in any other case, the functional equivalent of the foregoing. 



        "Other List" shall have the meaning assigned to such term in Section 6.19. 



19







 




        "Other Taxes" shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (including interest, fines, penalties and additions to tax) arising from any payment made or required to be made under any Loan Document or from the execution, delivery or enforcement
of any Loan Document. 


        "Participant" shall have the meaning assigned to such term in Section 10.04(e). 


        "PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA. 


        "Permitted Acquisition" shall mean any transaction or series of related transactions for the direct or indirect (a) acquisition of
all or substantially all of the property of any person, or of any business or division of any person; (b) acquisition of in excess of 50% of the Equity Interests of any person, and otherwise
causing such person to become a Subsidiary of such person; or (c) merger or consolidation or any other combination with any person, if each of the following conditions is met: 



          (i)  no
Default then exists or would result therefrom; 


         (ii)  after
giving effect to such transaction on a Pro Forma Basis, (A) Borrower shall be in compliance with all covenants set forth in  Section 6.10 as of the most recent Test Period (assuming, for
purposes of Section 6.10,
that such transaction, and all other Permitted Acquisitions consummated since the first day of the relevant Test Period for each of the financial covenants set forth in  Section 6.10 ending on or
prior to the date of such transaction, had occurred on the first day of such relevant Test Period), and
(B) unless expressly approved by the Administrative Agent, the person or business to be acquired shall
have generated positive cash flow for the Test Period most recently ended prior to the date of consummation of such acquisition; 


        (iii)  no
Company shall, in connection with any such transaction, assume or remain liable with respect to any Indebtedness or other liability (including any material tax or
ERISA liability) of the related seller or the business, person or properties acquired, except (A) to the extent permitted under  Section 6.01 and (B) obligations not constituting
Indebtedness incurred in the ordinary course of business and necessary or desirable to
the continued operation of the underlying properties or otherwise permitted by Section 6.01, and any other such liabilities or obligations not
permitted to be assumed or otherwise supported by any Company hereunder, shall be paid in full or released as to the business, persons or properties being so acquired on or before the consummation of
such acquisition; 


        (iv)  the
person or business to be acquired shall be, or shall be engaged in, a business of the type that Borrower and the Subsidiaries are permitted to be engaged in under  Section 6.14 and the Equity
Interest of any Wholly Owned Subsidiary formed or acquired in connection with any such transaction shall be made
subject to the Lien of the Security Documents (subject to the exceptions set forth therein) and shall be free and clear of any Liens (except Permitted Liens); 


         (v)  the
Board of Directors of the person to be acquired shall not have voted to oppose the consummation of such acquisition (which opposition has not been publicly
withdrawn); 


        (vi)  all
transactions in connection therewith shall be consummated in accordance with all applicable laws of all applicable Governmental Authorities; 


       (vii)  with
respect to any transaction involving Acquisition Consideration of more than $25.0 million, unless the Administrative Agent shall otherwise agree, Borrower
shall have provided the Administrative Agent and the Lenders with (A) historical financial statements for the last three fiscal years of the person or business to be acquired (audited if
available 




20







 





without
undue cost or delay) and unaudited financial statements thereof for the most recent interim period which are available, (B) reasonably detailed projections for the succeeding five years
pertaining to the person or business to be acquired and updated projections for Borrower after giving effect to such transaction, (C) a reasonably detailed description of all material
information relating thereto and copies of all material documentation pertaining to such transaction, and (D) all such other information and data relating to such transaction or the person or
business to be acquired as may be reasonably requested by the Administrative Agent or the Required Lenders; 


      (viii)  at
least 10 Business Days prior to the proposed date of consummation of the transaction, Borrower shall have delivered to the Agents and the Lenders an Officers'
Certificate certifying that (A) such transaction complies with this definition (which shall have attached thereto reasonably detailed backup data and calculations showing such compliance), and
(B) such transaction could not reasonably be expected to result in a Material Adverse Effect; and 



        (ix)  the
Acquisition Consideration (exclusive of any amounts financed by Equity Interests of Borrower or by the proceeds from the substantially concurrent issuance of any
Equity Interests of Borrower) for such acquisition shall not exceed $50.0 million; provided that any Equity Interests constituting all or a
portion of such Acquisition Consideration shall not have a cash dividend requirement on or prior to the Final Maturity Date. 




        "Permitted Liens" shall have the meaning assigned to such term in Section 6.02. 



        "person" shall mean any natural person, corporation, business trust, joint venture, association, company, limited liability company,
partnership or government, or any agency or political subdivision thereof, in any case, whether acting in a personal, fiduciary or other capacity. 


        "Plan" shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA which is maintained or contributed to by any Company or its ERISA Affiliate or with respect to which any Company could incur liability
(including under Section 4069 of ERISA). 


        "Pledge Agreement" shall mean each Pledge Agreement substantially in the form of  Exhibit J among the Loan Parties and Collateral Agent for the benefit of the
Secured Parties. 


        "Preferred Stock" shall mean, with respect to any person, any and all preferred or preference Equity Interests (however designated) of
such person whether now outstanding or issued after the Closing Date. 



        "Pro Forma Basis" shall mean on a basis in accordance with GAAP and Regulation S-X and otherwise reasonably
satisfactory to the Administrative Agent. 


        "Pro Rata Percentage" of any Revolving Lender at any time shall mean the percentage of the total Revolving Commitments of all Revolving
Lenders represented by such Lender's Revolving Commitment. 


        "property" shall mean any right, title or interest in or to property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible and including Equity Interests or other ownership interests of any person and whether now in existence or owned or hereafter entered into or acquired, including all Real
Property. 


        "Purchase and Sale Agreement" shall mean the Amended and Restated Purchase and Sale Agreement, dated as of May 31, 2002, as
amended, restated, refinanced, supplemented or otherwise modified to the date of this Agreement, between AFC Funding Corporation and Automotive Finance Corporation and as further amended, restated,
refinanced, replaced, 



21







 




supplemented
or otherwise modified after the date of this Agreement in a manner not materially adverse to the Lenders. 


        "Purchase Money Obligation" shall mean, for any person, the obligations of such person in respect of Indebtedness (including Capital Lease
Obligations) incurred for the purpose of financing all or any part of the purchase price of any property (including Equity Interests of any person) or the cost of installation, construction or
improvement of any property and any refinancing thereof; provided, however, that (i) such
Indebtedness is incurred within 90 days after such acquisition of such property by such person and (ii) the amount of such Indebtedness does not exceed 100% of the cost of such
acquisition, installation, construction or improvement, as the case may be. 


        "Qualified Capital Stock" of any person shall mean any Equity Interests of such person that are not Disqualified Capital Stock. 


        "Real Property" shall mean, collectively, all right, title and interest (including any leasehold estate) in and to any and all parcels of
or interests in real property owned, leased or operated by any person, whether by lease, license or other means, together with, in each case, all easements, hereditaments and appurtenances relating
thereto, all improvements and appurtenant fixtures and equipment, all general intangibles and contract rights and other property and rights incidental to the ownership, lease or operation thereof. 


        "Receivables Purchase Agreement" shall mean the Amended and Restated Receivables Purchase Agreement, dated May 31, 2002, as
amended, restated, refinanced, supplemented or otherwise modified to the date of this Agreement, among AFC Funding Corporation, as seller, Automotive Finance Corporation, as servicer, Fairway Finance
Corporation and such other entities as may become purchasers, BMO Nesbitt Burns Corp., as initial agent, and XL Capital Assurance Inc., as insurer, and as further amended, restated, refinanced,
replaced, supplemented or otherwise modified after the date of this Agreement in a manner not materially adverse to the Lenders. 


        "Refinanced Term Loans" shall have the meaning assigned to such term in  Section 10.02(d). 


        "Refinancing" shall have the meaning assigned to such term in the first recital hereto. 


        "Register" shall have the meaning assigned to such term in Section 10.04(c). 



        "Regulation D" shall mean Regulation D of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof. 


        "Regulation S-X" shall mean Regulation S-X promulgated under the Securities Act. 


        "Regulation T" shall mean Regulation T of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof. 


        "Regulation U" shall mean Regulation U of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof. 


        "Regulation X" shall mean Regulation X of the Board as from time to time in effect and all official rulings and
interpretations thereunder or thereof. 


        "Reimbursement Obligations" shall mean Borrower's obligations under Section 2.18(e)
to reimburse LC Disbursements. 


        "Release" shall mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, disposing, depositing, dispersing, emanating or migrating of any Hazardous Material in, into, onto or through the Environment. 


        "Replacement Term Loans" shall have the meaning assigned to such term in  Section 10.02(d). 



22













  



        "Required Lenders" shall mean, at any time, Lenders having Loans, LC Exposure and unused Revolving and Term Loan Commitments representing
more than 50% of the sum of all Loans outstanding, LC Exposure and unused Revolving and Term Loan Commitments at such time. 



        "Requirements of Law" shall mean, collectively, any and all requirements of any Governmental Authority including any and all laws,
ordinances, rules, regulations or similar statutes or case law. 


        "Response" shall mean (a) "response" as such term is defined in CERCLA, 42 U.S.C. § 9601(24), and (b) all other
actions required by any Governmental Authority or voluntarily undertaken to (i) clean up, remove, treat, abate or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release, of any Hazardous Material; or (iii) perform studies and investigations in connection with, or as a
precondition to, clause (i) or (ii) above. 


        "Responsible Officer" of any person shall mean any executive officer or Financial Officer of such person and any other officer or similar
official thereof with responsibility for the administration of the obligations of such person in respect of this Agreement. 


        "Revolving Availability Period" shall mean the period from and including the Initial Funding Date to but excluding the earlier of
(i) the Business Day preceding the Revolving Maturity Date and (ii) the date of termination of the Revolving Commitments. 


        "Revolving Borrowing" shall mean a Borrowing comprised of Revolving Loans. 


        "Revolving Commitment" shall mean, with respect to each Lender, the commitment, if any, of such Lender to make Revolving Loans hereunder
up to the amount set forth on Schedule I to the Lender Addendum executed and delivered by such Lender or by an amendment to this Agreement pursuant to  Section 10.02(e), or in the Assignment
and Assumption pursuant to which such Lender assumed its Revolving Commitment, as applicable, as the same
may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The aggregate amount of the Lenders' Revolving Commitments on the Closing Date is
$150.0 million. 


        "Revolving Exposure" shall mean, with respect to any Lender at any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender's LC Exposure,  plus the aggregate amount at such time of such
Lender's Swingline Exposure. 



        "Revolving Lender" shall mean a Lender with a Revolving Commitment. 


        "Revolving Loan" shall mean a Loan made by the Lenders to Borrower pursuant to  Section 2.01(b). Each Revolving Loan shall either be an ABR Revolving Loan or a
Eurodollar Revolving Loan. 


        "Revolving Maturity Date" shall mean the date which is five years after the Closing Date or, if such date is not a Business Day, the first
Business Day thereafter. 


        "Sale and Leaseback Transaction" shall have the meaning assigned to such term in  Section 6.03. 


        "Sarbanes-Oxley Act" shall mean the United States Sarbanes-Oxley Act of 2002, as amended, and all rules and regulations promulgated
thereunder. 


        "SDN List" shall have the meaning assigned to such term in Section 6.19. 



        "Secured Parties" shall mean, collectively, the Administrative Agent, the Collateral Agent, each other Agent, the Lenders and each party
to a Hedging Agreement relating to the Loans if at 



23







 




the
date of entering into such Hedging Agreement such person was a Lender or an Affiliate of a Lender and such person executes and delivers to the Administrative Agent a letter agreement in form and
substance acceptable to the Administrative Agent pursuant to which such person (i) appoints the Collateral Agent as its agent under the applicable Loan Documents and (ii) agrees to be
bound by the provisions of Sections 10.03 and 10.09. 


        "Securities Act" shall mean the Securities Act of 1933. 


        "Security Documents" shall mean the Pledge Agreements and each other security document or pledge agreement delivered in accordance with
applicable local or foreign law to grant a valid, perfected security interest in any property as collateral for the Obligations, and all UCC or other financing statements or instruments of perfection
required by this Agreement, the Pledge Agreements or any other such security document or pledge agreement to be filed with respect to the security interests in property created pursuant to the Pledge
Agreements and any other document or instrument utilized to pledge as collateral for the Obligations any property. 


        "Senior Subordinated Note Agreement" shall mean any indenture, note purchase agreement or other agreement pursuant to which the Senior
Subordinated Notes are issued as in effect on the Initial Funding Date and thereafter amended, modified, renewed, replaced or refinanced from time to time subject to the requirements of this
Agreement. 


        "Senior Subordinated Note Documents" shall mean the Senior Subordinated Notes, the Senior Subordinated Note Agreement, the Senior
Subordinated Note Guarantees and all other documents executed and delivered with respect to the Senior Subordinated Notes or the Senior Subordinated Note Agreement. 


        "Senior Subordinated Note Guarantees" shall mean any guarantees of the Subsidiary Guarantors, when and if executed, pursuant to the Senior
Subordinated Note Agreement or any supplement thereto or any other agreement substantially similar thereto. 



        "Senior Subordinated Notes" shall mean Borrower's Senior Subordinated Notes issued pursuant to the Senior Subordinated Note Agreement or
any supplement thereto or any other agreement substantially similar thereto and any registered notes issued by Borrower in exchange for, and as contemplated by, such notes with substantially identical
terms as such notes. 


        "SPE" shall mean an entity which provides floor plan financing liquidity to Automotive Finance Corporation on substantially similar terms
as the existing Receivables Purchase Agreement or terms no less favorable to the Lenders. 



        "Standby Letter of Credit" shall mean any standby letter of credit or similar instrument issued for the purpose of supporting
(a) workers' compensation liabilities of Borrower or any of its Subsidiaries, (b) the obligations of third-party insurers of Borrower or any of its Subsidiaries arising by virtue of the
laws of any jurisdiction requiring third-party insurers to obtain such letters of credit, (c) performance, payment, deposit or surety obligations of Borrower or any of its Subsidiaries if
required by law or governmental rule or regulation or in accordance with custom and practice in the industry or (d) Indebtedness of Borrower or any of its Subsidiaries permitted to be incurred
under Section 6.01. 


        "Statutory Reserves" shall mean, for any Interest Period for any Eurodollar Borrowing in dollars, the average maximum rate at which
reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D by member banks of the United States Federal
Reserve System in New York City with deposits exceeding one billion dollars against "Eurodollar liabilities" (as such term is used in Regulation D). Eurodollar Borrowings shall be deemed to
constitute Eurodollar liabilities and to 



24







 




be
subject to such reserve requirements without benefit of or credit for proration, exceptions or offsets which may be available from time to time to any Lender under Regulation D. 


        "Subordinated Indebtedness" shall mean Indebtedness of Borrower or any Subsidiary Guarantor that is by its terms subordinated in right of
payment to the Obligations of Borrower and such Subsidiary Guarantor, as applicable, including the Senior Subordinated Notes. 



        "Subsidiary" shall mean, with respect to any person (the "parent") at any date,
(i) any person the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance
with GAAP as of such date, (ii) any other corporation, limited liability company, association or other business entity of which securities or other ownership interests representing more than
50% of the voting power of all Equity Interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Board of Directors thereof are, as of such date, owned,
controlled or held by the parent and/or one or more subsidiaries of the parent, (iii) any partnership (a) the sole general partner or the managing general partner of which is the parent
and/or one or more subsidiaries of the parent or (b) the only general partners of which are the parent and/or one or more subsidiaries of the parent and (iv) any other person that is
otherwise Controlled by the parent and/or one or more subsidiaries of the parent. Unless the context requires otherwise, "Subsidiary" refers to a Subsidiary of Borrower. 


        "Subsidiary Guarantor" shall mean each Wholly Owned Domestic Subsidiary of Borrower and each other Subsidiary that is or becomes a party
to this Agreement pursuant to Section 5.11, other than ADESA Importation Services, Inc., ADESA Transportation, Inc. and AFC Funding
Corporation; provided that if any Domestic Subsidiary which is not a Wholly Owned Domestic Subsidiary shall guarantee any other Indebtedness, such
Subsidiary shall become a Subsidiary Guarantor hereunder. 


        "Supermajority Lenders" shall mean at any time, Lenders having Loans, LC Exposure and unused Revolving and Term Loan Commitments
representing at least 662/3% of the sum of all Loans outstanding, LC Exposure and unused Revolving and Term Loan Commitments at such time. 



        "Swingline Commitment" shall mean the commitment of the Swingline Lender to make loans pursuant to  Section 2.17, as the same may be reduced from time to time
pursuant to Section 2.07 or  Section 2.17.
The amount of the Swingline Commitment shall initially be $30,000,000, but in no event exceed the Revolving Commitment. 


        "Swingline Exposure" shall mean at any time the aggregate principal amount at such time of all outstanding Swingline Loans. The Swingline
Exposure of any Revolving Lender at any time shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time. 


        "Swingline Lender" shall have the meaning assigned to such term in the preamble hereto. 


        "Swingline Loan" shall mean any loan made by the Swingline Lender pursuant to  Section 2.17. 



        "Syndication Agent" shall have the meaning assigned to such term in the preamble hereto. 


        "Tax Return" shall mean all returns, statements, filings, attachments and other documents or certifications required to be filed in
respect of Taxes. 


        "Taxes" shall mean (i) any and all present or future taxes, duties, levies, imposts, assessments, deductions, withholdings or other
similar charges, whether computed on a separate, consolidated, unitary, combined or other basis and any and all liabilities (including interest, fines, penalties or additions to tax) with respect to
the foregoing, and (ii) any transferee, successor, joint and several, 



25







 




contractual
or other liability (including liability pursuant to Treasury Regulation § 1.1502-6 (or any similar provision of state, local or non-U.S. law)) in
respect of any item described in clause (i). 


        "Term Borrowing" shall mean a Borrowing comprised of Term Loans. 



        "Term Loan Commitments" shall mean the Tranche A Commitment and the Tranche B Commitment, collectively. 


        "Term Loan Lender" shall mean a Lender with a Term Loan Commitment or an outstanding Term Loan. 


        "Term Loan Repayment Date" shall have the meaning assigned to such term in  Section 2.09(a). 


        "Term Loans" shall mean the Tranche A Loans and the Tranche B Loans, collectively. 



        "Test Period" shall mean, at any time, the four consecutive fiscal quarters of Borrower then last ended (in each case taken as one
accounting period) for which financial statements have been or are required to be delivered pursuant to Section 5.01(a) or  (b). 


        "Total Leverage Ratio" shall mean, at any date of determination, the ratio of Consolidated Indebtedness on such date to Consolidated
EBITDA for the Test Period then most recently ended. 


        "Tranche A Commitment" shall mean, with respect to each Lender, the commitment, if any, of such Lender to make a Tranche A Loan hereunder
on the Closing Date in the amount set forth on Schedule I to the Lender Addendum executed and delivered by such Lender or by an amendment to this Agreement pursuant to  Section 10.02(e), or in
the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche A Commitment, as applicable,
as the same may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The aggregate amount of the Lenders' Tranche A Commitments is $175,000,000. 


        "Tranche A Commitment Termination Date" shall mean the earlier of (a) June 30, 2004, if the Tranche A Loan(s) has not been
made on or prior to such date, or if such date is not a Business Day, the immediately preceding Business Day and (b) the date the Tranche A Commitment is reduced to $0. 


        "Tranche A Lender" shall mean a Lender with a Tranche A Commitment or an outstanding Tranche A Loan. 



        "Tranche A Loan" shall mean the term loans made by the Lenders to Borrower pursuant to  Section 2.01(a)(i) or by an amendment to this Agreement pursuant to
Section 10.02(e). Each
Tranche A Loan shall be either an ABR Term Loan or a Eurodollar Term Loan. 


        "Tranche A Maturity Date" shall mean the date which is five years after the Closing Date or, if such date is not a Business Day, the first
Business Day thereafter. 


        "Tranche B Commitment" shall mean, with respect to each Lender, the commitment, if any, of such Lender to make a Tranche B Loan hereunder
on the Closing Date in the amount set forth on Schedule I to the Lender Addendum executed and delivered by such Lender or by an amendment to this Agreement pursuant to  Section 10.02(e), or in
the Assignment and Assumption pursuant to which such Lender shall have assumed its Tranche B Commitment, as applicable,
as the same may be (a) reduced from time to time pursuant to Section 2.07 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The aggregate amount of the Lenders' Tranche B Commitments is $200,000,000. 


        "Tranche B Commitment Termination Date" shall mean the earlier of (a) [date that is 60 days after the Closing
Date], 2004, if the Tranche B Loan(s) has not been made on or prior to such 



26







 




date,
or if such date is not a Business Day, the immediately preceding Business Day and (b) the date the Tranche B Commitment is reduced to $0. 



        "Tranche B Lender" shall mean a Lender with a Tranche B Commitment or an outstanding Tranche B Loan. 


        "Tranche B Loan" shall mean the term loans made by the Lenders to Borrower pursuant to  Section 2.01(a)(ii) or by an amendment to this Agreement pursuant to
Section 10.02(e).
Each Tranche B Loan shall be either an ABR Term Loan or a Eurodollar Term Loan. 



        "Tranche B Maturity Date" shall mean the date which is six years after the Closing Date or, if such date is not a Business Day, the first
Business Day thereafter. 


        "Transaction Documents" shall mean the IPO Documents, the Senior Subordinated Note Documents and the Loan Documents. 


        "Transactions" shall mean, collectively, the transactions to occur pursuant to the Transaction Documents, including (a) the
consummation of the IPO; (b) the execution, delivery and performance of the Loan Documents and the initial borrowings hereunder; (c) the distribution of the Dividend Note; (d) the
repayment of $200.2 million of Borrower's outstanding debt, as described on Schedule B hereto; (e) the repayment of
$[    ] million of intercompany debt owed to ALLETE and its affiliates, as described on Schedule B
hereto; (f) the repurchase of shares of Borrower's common stock from certain AL-LETE employee benefit plans for an approximate purchase price of $130.0 million;
(g) the issuance of the Senior Subordinated Notes; (h) the distribution of the remaining capital stock of Borrower owned by AL-LETE to the stockholders of ALLETE;
(i) the
sale of any capital stock of Borrower distributed to the trustees of ALLETE's employee stock ownership and pension plans to Borrower; and (j) the payment of all fees and expenses to be paid on
or prior to the completion of the foregoing and owing in connection with the foregoing. 


        "Transferred Guarantor" shall have the meaning assigned to such term in  Section 7.09. 


        "Type," when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBOR Rate or the Alternate Base Rate. 



        "UCC" shall mean the Uniform Commercial Code as in effect from time to time (except as otherwise specified) in any applicable state or
jurisdiction. 


        "United States" shall mean the United States of America. 


        "Voting Stock" shall mean, with respect to any person, any class or classes of Equity Interests pursuant to which the holders thereof have
the general voting power under ordinary circumstances to elect at least a majority of the Board of Directors of such person. 



        "Wholly Owned Subsidiary" shall mean, as to any person, (a) any corporation 100% of whose capital stock (other than directors'
qualifying shares) is at the time owned, on a combined basis, by such person and/or one or more Wholly Owned Subsidiaries of such person and (b) any partnership, association, joint venture,
limited liability company or other entity in which such person and/or one or more Wholly Owned Subsidiaries of such person have a 100% equity interest at such time, on a combined basis. 


        "Withdrawal Liability" shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. 



27







 





        SECTION 1.02    Classification of Loans and Borrowings.    For
purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving Loan") or by Type
(e.g., a "Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also
may be classified and
referred to by Class (e.g., a "Revolving Borrowing," "Borrowing of Tranche A Loans") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing"). 



        SECTION 1.03    Terms Generally.    The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The word "will" shall be construed to have the same meaning and effect as the word "shall."
Unless the context requires otherwise (a) any definition of or reference to any Loan Document, agreement, instrument or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any person shall be construed to include such person's successors and assigns, (c) the words "herein," "hereof" and "hereunder," and words of similar import,
shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (d) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, unless otherwise indicated. 


        SECTION 1.04    Accounting Terms; GAAP.    Except as otherwise
expressly provided herein, all financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to time and all terms of an accounting
or financial nature shall be construed and interpreted in accordance with GAAP, as in effect on the date hereof unless otherwise agreed to by Borrower and the Required Lenders. 


        SECTION 1.05    Resolution of Drafting Ambiguities.    Each Loan Party
acknowledges and agrees that it was represented by counsel in connection with the execution and delivery of the Loan Documents to which it is a party, that it and its counsel reviewed and participated
in the preparation and negotiation hereof and thereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation hereof or thereof. 


ARTICLE II  


 THE CREDITS  


        SECTION 2.01    Commitments.    Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, each Lender agrees, severally and not jointly: 



        (a)   (i) to
make a Tranche A Loan to Borrower at any time prior to the Tranche A Commitment Termination Date, in an amount equal to the portion of such Lender's
Tranche A Commitment as requested by Borrower to be made on such day (subject to a maximum of one drawing) in the aggregate principal amount not to exceed at any time its outstanding Tranche A
Commitment and (ii) to make Tranche B Loans to Borrower at any time prior to the Tranche B Commitment Termination Date, in an amount equal to the portion of such Lender's Tranche B Commitment
as requested by Borrower to be made on such day (subject to a maximum of two total drawings, the first of which shall be made on the Initial Funding Date) in the aggregate principal amount not to
exceed at any time its outstanding Tranche B Commitment; and 


        (b)   to
make Revolving Loans to Borrower, at any time and from time to time on or after the Initial Funding Date until the earlier of the Revolving Maturity Date and the
termination of the Revolving Commitment of such Lender in accordance with the terms hereof, in an aggregate 



28







 




principal
amount at any time outstanding that will not result in such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment. 




        Amounts
paid or prepaid in respect of Term Loans may not be reborrowed. Within the limits set forth in clause (b) above and subject to the terms, conditions and limitations set
forth herein, Borrower may borrow, pay or prepay and reborrow Revolving Loans. 


        SECTION 2.02    Loans.    (a) Each Loan (other than Swingline Loans)
shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable Commitments; provided that the
failure of any Lender to make any Loan shall not in itself relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no Lender shall be responsible for the
failure of any other Lender to make any Loan required to be made by such other Lender). Except for Loans deemed made pursuant to  Section 2.18(e)(ii), (x) ABR Loans comprising any Borrowing
shall be in an aggregate principal amount that is (i) an integral
multiple of $1.0 million and not less than $3.0 million or (ii) equal to the remaining available balance of the applicable Commitments and (y) the Eurodollar Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple of $1.0 million and not less than $3.0 million or (ii) equal to the
remaining available balance of the applicable Commitments. 


        (b)   Subject
to Sections 2.11 and 2.12, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as Borrower may request pursuant to Section 2.03. Each Lender may at its option make any Eurodollar
Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect
the obligation of Borrower to repay such Loan in accordance with the terms of this Agreement. Borrowings of more than one Type may be outstanding at the same time;  provided that Borrower shall not be
entitled to request any Borrowing that, if made, would result in more than ten Eurodollar Borrowings outstanding
hereunder at any one time. For purposes of the foregoing, Borrowings having different Interest Periods, regardless of whether they commence on the same date, shall be considered separate Borrowings. 


        (c)   Except
with respect to Loans made pursuant to Section 2.18(e)(ii), each Lender shall make each Loan to be made by
it hereunder on the proposed date thereof by wire transfer of immediately available funds to such account in New York City as the Administrative Agent may designate not later than 11:00 a.m.,
New York City time, and the Administrative Agent shall promptly credit the amounts so received to an account as directed by Borrower in the applicable Borrowing Request maintained with the
Administrative Agent or, if a Borrowing shall not occur on such date because any condition precedent herein specified shall not have been met, return the amounts so received to the respective Lenders. 


        (d)   Unless
the Administrative Agent shall have received notice from a Lender prior to the date of any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such
Borrowing in accordance with paragraph (c) above, and the Administrative Agent may, in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If the
Administrative Agent shall have so made funds available, then, to the extent that such Lender shall not have made such portion available to the Administrative Agent, each of such Lender and Borrower
severally agrees to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to Borrower
until the date such amount is repaid to the Administrative Agent at (i) in the case of Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and
(ii) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender's Loan as part of such 


29







 



Borrowing
for purposes of this Agreement, and Borrower's obligation to repay the Administrative Agent such corresponding amount pursuant to this  Section 2.02(d) shall cease. 


        (e)   Notwithstanding
any other provision of this Agreement, Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest
Period requested with respect thereto would end after the Revolving Maturity Date, Tranche A Maturity Date or Tranche B Maturity Date, as applicable. 


        SECTION 2.03    Borrowing Procedure.    To request a Revolving
Borrowing or Term Borrowing, Borrower shall deliver, by hand delivery or telecopy, a duly completed and executed Borrowing Request to the Administrative Agent (i) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than
9:00 a.m., New York City time, on the date of the proposed Borrowing. Each Borrowing Request shall be irrevocable (unless Borrower receives notice from the Agent or any Lender that such
Borrowing cannot be a Eurodollar Borrowing) and shall specify the following information in compliance with Section 2.02: 



        (a)   whether
the requested Borrowing is to be a Borrowing of Revolving Loans, Tranche A Loans or Tranche B Loans; 


        (b)   the
aggregate amount of such Borrowing; 



        (c)   the
date of such Borrowing, which shall be a Business Day; 


        (d)   whether
such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; 


        (e)   in
the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term "Interest
Period"; 


        (f)    the
location and number of Borrower's account to which funds are to be disbursed, which shall comply with the requirements of  Section 2.02(c); and 



        (g)   that
the conditions set forth in Sections 4.02(b)-(d) have been satisfied as of the date of the notice. 




        If
no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested
Eurodollar Revolving Borrowing, then Borrower shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing. 



        SECTION 2.04    Evidence of Debt; Repayment of Loans.    (a) Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Term Loan Lender, the principal amount of each Term Loan of such Term Loan Lender as provided in  Section 2.09, (ii) to the Administrative Agent for the account of each Revolving Lender, the then unpaid principal amount of each
Revolving Loan of such Revolving Lender on the Revolving Maturity Date and (iii) to the Swingline Lender, the then unpaid principal amount of each Swingline Loan on the earlier of the Revolving
Maturity Date and the first date after such Swingline Loan is made that is the 15th or last day of a calendar month and is at least two Business Days after such Swingline Loan is made;  provided that on
each date that a Revolving Borrowing is made, Borrower shall repay all Swingline Loans that were outstanding on the date such Borrowing
was requested with the proceeds of such Borrowing. 


        (b)   Each
Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of Borrower to such Lender resulting from each Loan
made by such Lender from time to time, including the amounts of principal and interest payable and paid to such Lender from time to time under this Agreement. 


30







 



        (c)   The
Administrative Agent shall maintain accounts in which it will record (i) the amount of each Loan made hereunder, the Type and Class thereof and the Interest
Period applicable thereto; (ii) the amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder; and (iii) the amount of any
sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof. 



        (d)   The
entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall be prima facie
evidence of the existence and amounts of the obligations therein recorded, absent manifest error; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligations of Borrower to repay the Loans in accordance with their terms. 


        (e)   Any
Lender by written notice to Borrower (with a copy to the Administrative Agent) may request that Loans of any Class made by such Lender be evidenced by a promissory
note. In such event, Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) in the form of Exhibit I-I, I-2,  I-3 or I-4, as the case may be. Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after assignment pursuant to Section 10.04) be represented by one or more
promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns). 



        SECTION 2.05    Fees.    



        (a)    Commitment Fee.    Borrower agrees to pay to the Administrative Agent for the account of each Lender a
commitment fee (a "Commitment Fee") equal to the Applicable Fee per annum on the average daily unused amount of each Commitment of such Lender during
the period from and including the date hereof to but excluding the date on which such Commitment terminates. Accrued Commitment Fees shall be payable in arrears (A) on the last Business Day of
March, June, September and December of each year, commencing on the first such date to occur after the date hereof, and (B) on the date on which such Commitment terminates. Commitment Fees
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of computing
Commitment Fees with respect to Revolving
Commitments, a Revolving Commitment of a Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure of such Lender. 


        (b)    Administrative Agent Fees.    Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter or such other fees payable in the amounts and at the times separately agreed upon between Borrower and the Administrative Agent (the
"Administrative Agent Fees"). 


        (c)    LC and Fronting Fees.    Borrower agrees to pay (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee ("LC Participation Fee") with respect to its participations in Letters of Credit, which shall accrue at a rate
equal to the Applicable Margin from time to time used to determine the interest rate on Eurodollar Revolving Loans pursuant to Section 2.06 on
the average daily amount of such Lender's LC Exposure (excluding any portion thereof attributable to Reimbursement Obligations) during the period from and including the Closing Date to but excluding
the later of the date on which such Lender's Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting fee
("Fronting Fee"), which shall accrue at the rate of 0.125% per annum on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to Reimbursement Obligations) during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Commitments and the date on 



31







 




which
there ceases to be any LC Exposure, as well as the Issuing Bank's customary fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Accrued LC Participation Fees and Fronting Fees shall be payable in arrears (i) on the last Business Day of March, June, September and December of each year, commencing on the first
such date to occur after the Closing Date, and (ii) on the date on which the Revolving Commitments terminate. Any such fees accruing after the date on which the Revolving Commitments terminate
shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within 10 Business Days after demand therefor. All LC Participation Fees and Fronting
Fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). 


        (d)   All
Fees shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, if and as appropriate, among the Lenders, except
that Borrower shall pay the Fronting Fees directly to the Issuing Bank. Once paid, none of the Fees shall be refundable under any circumstances. 




        SECTION 2.06    Interest on Loans.    (a) Subject to the provisions of  Section 2.06(c),
the Loans comprising each ABR Borrowing, including each Swingline Loan, shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin in effect from time to time. 


        (b)   Subject
to the provisions of Section 2.06(c), the Loans comprising each Eurodollar Borrowing shall bear interest
at a rate per annum equal to the Adjusted LIBOR Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin in effect from time to time. 



        (c)   Notwithstanding
the foregoing, during an Event of Default under Section 8.01(a),  (b), (g) or (h), all Obligations shall, to the extent
permitted by applicable law, bear interest, after as well as before judgment, at a per annum rate equal to (i) in the case of principal of or interest on any Loan, 2% plus the rate otherwise
applicable to such Loan as provided in the preceding paragraphs of this Section 2.06 or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Revolving Loans as provided in Section 2.06(a) (in either case, the "Default
Rate"). In addition, during such Event of Default, the LC Participation Fee shall be 2% plus the rate otherwise applicable under  Section 2.05(c)(i). 


        (d)   Accrued
interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that
(i) interest accrued pursuant to Section 2.06(c) shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan or a Swingline Loan), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment
and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of
such conversion. 


        (e)   All
interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding
the last day). The applicable Alternate Base Rate or Adjusted LIBOR Rate shall be determined by the Administrative Agent in accordance with the provisions of this Agreement and such determination
shall be conclusive absent manifest error. 


        SECTION 2.07    Termination and Reduction of Commitments.    (a) The
Tranche A Commitment shall automatically terminate at 5:00 p.m., New York City time, on the Initial Funding Date. The Tranche B Commitment shall automatically terminate at 5:00 p.m., New
York City time, on the Tranche B Commitment Termination Date. The Revolving Commitments, the Swingline Commitment and the LC Commitment shall automatically terminate on the Revolving Maturity Date.
Notwithstanding the 


32







 



foregoing,
all the Commitments shall automatically terminate at 5:00 p.m., New York City time, on June 30, 2004, if the initial Credit Extension shall not have occurred by such time. 


        (b)   At
its option, Borrower may at any time terminate, or from time to time permanently reduce, the Commitments of any Class;  provided that (i) each reduction of the Commitments of any Class shall be in
an amount that is an integral multiple of $1.0 million and
not less than $3.0 million and (ii) the Revolving Commitments shall not be terminated or reduced if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.10, the aggregate amount of Revolving Exposures would exceed the aggregate amount of Revolving Commitments. 


        (c)   Borrower
shall notify the Administrative Agent in writing of any election to terminate or reduce the Commitments under  Section 2.07(b) at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the
effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be revoked by Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is
not satisfied. Any termination or reduction of the Commitments of any Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class. 


        SECTION 2.08    Interest Elections.    (a) Each Revolving Borrowing
and Term Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section. Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. Notwithstanding anything to the contrary, Borrower
shall not be entitled to request any conversion or continuation that, if made, would result in more than ten Eurodollar Borrowings outstanding hereunder at any one time. This Section shall not apply
to Swingline Borrowings, which may not be converted or continued, except into a Revolving Loan. 


        (b)   To
make an election pursuant to this Section, Borrower shall deliver, by hand delivery or telecopy, a duly completed and executed Interest Election Request to the
Administrative Agent not later than the time that a Borrowing Request would be required under Section 2.03 if Borrower were requesting a
Revolving Borrowing or Term Borrowing of the Type resulting from such election to be made on the effective date of such election. Each Interest Election Request shall be irrevocable. 


        (c)   Each
Interest Election Request shall specify the following information in compliance with Section 2.02: 



          (i)  the
Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, or if outstanding
Borrowings are being combined,
allocation to each resulting Borrowing (in which case the information to be specified pursuant to clause (iii) below shall be specified for each resulting Borrowing); 


         (ii)  the
effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day; and 


        (iii)  whether
the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing. 



33













   
        If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then Borrower shall be deemed to have selected an Interest Period of one
month's duration. 


        (d)   Promptly
following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender's portion of each
resulting Borrowing. 


        (e)   If
an Interest Election Request with respect to a Eurodollar Borrowing is not timely delivered prior to the end of the Interest Period applicable thereto, then, unless
such Borrowing is repaid as provided herein, at the end of such Interest Period, the Interest Period applicable to such Borrowing shall be deemed to be one month. Notwithstanding any contrary
provision hereof, if an Event of Default has occurred and is continuing, the Administrative Agent or the Required Lenders may require, by notice to Borrower, that (i) no outstanding Borrowing
may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable
thereto. 


        SECTION 2.09    Amortization of Term Borrowings.    (a) Borrower shall
pay to the Administrative Agent, for the account of the Lenders, on the dates set forth on Annex II, or if any such date is not a Business Day, on the
immediately preceding Business Day (each such date, a "Term Loan Repayment Date"), a principal amount of the Tranche A Loans and the Tranche B Loans
equal to the amount set forth on Annex II for such date (as adjusted from time to time pursuant to  Section 2.10(e)), together in each case with
accrued and unpaid interest on the principal amount to be paid to but excluding the date of such
payment. 


        (b)   To
the extent not previously paid, (i) all Tranche A Loans shall be due and payable on the Tranche A Maturity Date and (ii) all Tranche B Loans shall be
due and payable on the Tranche B Maturity Date. 


        SECTION 2.10    Optional and Mandatory Prepayments of Loans.    



        (a)    Optional Prepayments.    Borrower shall have the right at any time and from time to time to prepay any
Borrowing, in whole or in part, without any premium or penalty, but subject to the requirements of this Section 2.10;  provided that each partial
prepayment shall be in an amount that is an integral multiple of $1.0 million and not less than $3.0 million. 


        (b)    Revolving Loan Prepayments.    (i) In the event of the termination of all the Revolving Commitments,
Borrower shall, on the date of such termination, repay or prepay all its outstanding Revolving Borrowings and all outstanding Swingline Loans and replace all outstanding Letters of Credit or cash
collateralize all outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i). 


         (ii)  In
the event of any partial reduction of the Revolving Commitments, then (x) at or prior to the effective date of such reduction, the Administrative Agent shall
notify Borrower and the Revolving Lenders of the sum of the Revolving Exposures after giving effect thereto and (y) if the sum of the Revolving Exposures would exceed the aggregate amount of
Revolving Commitments after giving effect to such reduction, then Borrower shall, on the date of such reduction, first, repay or prepay Swingline Loans,  second, repay or prepay Revolving Borrowings and third, replace outstanding Letters of Credit or cash
collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i), in an aggregate amount sufficient to
eliminate such excess. 


        (iii)  In
the event that the sum of all Lenders' Revolving Exposures exceeds the Revolving Commitments then in effect, Borrower shall, without notice or demand, immediately  first, repay or prepay Revolving
Borrowings, and second, replace outstanding Letters of Credit or cash 



34







 




collateralize
outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i), in an aggregate amount sufficient to
eliminate such excess. 


        (iv)  In
the event that the aggregate LC Exposure exceeds the LC Commitment then in effect, Borrower shall, without notice or demand, immediately replace outstanding Letters
of Credit or cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.18(i), in an aggregate
amount sufficient to eliminate such excess. 


        (c)    Asset Sales.    Not later than one Business Day following the receipt of any Net Cash Proceeds of any Asset
Sale by Borrower or any of its Subsidiaries, Borrower shall apply 100% of such Net Cash Proceeds to make prepayments in accordance with Sections 2.10(e)
and (f); provided that: 



          (i)  so
long as no Event of Default shall then exist or arise therefrom, no such prepayment shall be required under this  Section 2.10(c) with respect to (A) any Asset Sale permitted by Section 6.06(a) or  Section 6.06(g), (B) the disposition of property which constitutes a Casualty Event, or (C) Asset Sales for fair market value
resulting in no more than $2.0 million in Net Cash Proceeds per Asset Sale (or series of related Asset Sales) and less than $10.0 million in Net Cash Proceeds in any fiscal year;  provided that
clause (C) shall not apply in the case of any Asset Sale described in clause (b) of the definition thereof; and 



         (ii)  so
long as no Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that
(A) Borrower shall have delivered an Officers' Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are expected to be reinvested in fixed or
capital assets within 365 days following the date of such Asset Sale (which Officers' Certificate shall set forth the estimates of the proceeds to be so expended);  provided that if all or any
portion of such Net Cash Proceeds is not so reinvested within such 365-day period, such unused portion shall be
applied on the last day of such period as a mandatory prepayment as provided in this Section 2.10(c). 




        (d)    Casualty Events.    Not later than one Business Day following the receipt of any Net Cash Proceeds from a
Casualty Event by Borrower or any of its Subsidiaries, Borrower shall apply an amount equal to 100% of such Net Cash Proceeds to make prepayments in accordance with Sections
2.10(e) and (f); provided that: 



          (i)  so
long as no Event of Default then exist or arise therefrom, no such prepayment shall be required under this  Section 2.10(d) with respect to any Casualty Events resulting in no more than
$2.0 million in Net Cash Proceeds per Casualty Event and
less than $10.0 million in Casualty Events in any fiscal year; 


         (ii)  so
long as no Event of Default shall then exist or arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that Borrower shall
have delivered an Officers' Certificate to the Administrative Agent on or prior to such date stating that such proceeds are expected to be used, to repair, replace or restore any property in respect
of which such Net Cash Proceeds were paid or to reinvest in other fixed or capital assets, no later than 365 days following the date of receipt of such proceeds; and 


        (iii)  if
any portion of such Net Cash Proceeds shall not be so applied within such 365-day period, such unused portion shall be applied on the last day of such
period as a mandatory prepayment as provided in this Section 2.10(d). 




        (e)    Application of Prepayments.    (i) Prior to any optional or mandatory prepayment hereunder, Borrower
shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to  Section 2.10(f), subject to the provisions of 



35







 

this
Section 2.10(e). In the event of any optional or mandatory prepayment of Term Borrowings made at a time when Term Borrowings of more than
one Class remain outstanding, Borrower shall select Term Borrowings to be prepaid so that the aggregate amount of such prepayment is allocated between the Tranche A Loans and Tranche B Loans  pro rata
based on the aggregate principal amount of outstanding Borrowings of each such Class. Any prepayments of Term Borrowings pursuant to
Section 2.10(c) or (d) shall be applied to reduce scheduled prepayments required under  Section 2.09(a) on a pro
rata basis among the prepayments remaining to be made on each other Term
Loan Repayment Date. 


         (ii)  Amounts
to be applied pursuant to this Section 2.10 to the prepayment of Term Loans and Revolving Loans shall be
applied, as applicable, first to reduce outstanding ABR Term Loans and ABR Revolving Loans, respectively. Any amounts remaining after each such application shall be applied to prepay Eurodollar Term
Loans or Eurodollar Revolving Loans, as applicable. Notwithstanding the foregoing, if the amount of any prepayment of Loans required under this  Section 2.10 shall be in excess of the amount of the
ABR Loans at the time outstanding (an "Excess
Amount"), only the portion of the amount of such prepayment as is equal to the amount of such outstanding ABR Loans shall be immediately prepaid and, at the election of
Borrower, the balance of such required prepayment shall be either (A) applied to the prepayment of Eurodollar Loans on the last day of the then next-expiring Interest Period for
Eurodollar Loans or (B) prepaid immediately, together with any amounts owing to the Lenders under Section 2.13. 



        (f)    Notice of Prepayment.    Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by written notice of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment, (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the
date of prepayment and (iii) in the case of prepayment of a Swingline Loan, not later than 11:00 a.m., New York City time, on the date of prepayment. Each such notice shall be
irrevocable; provided that, if a notice of prepayment is given in connection with a conditional notice of termination of the Commitments as contemplated
by Section 2.07, then such notice of prepayment may be revoked if such termination is revoked in accordance with  Section 2.07. Each such notice
shall specify the prepayment date, the principal amount of each Borrowing or portion thereof to be prepaid and, in
the case of a mandatory prepayment, a reasonably detailed calculation of the amount of such prepayment. Promptly following receipt of any such notice (other than a notice relating solely to Swingline
Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Such notice to the Lenders may be by electronic communication. Each partial prepayment of any Borrowing shall be in
an amount that would be permitted in the case of a Credit Extension of the same Type as provided in Section 2.02, except as necessary to apply
fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing and otherwise in accordance with this  Section 2.10. Prepayments shall be accompanied by accrued interest to the extent required by  Section 2.06. 




        SECTION 2.11    Alternate Rate of
Interest.    If prior to the commencement of any Interest Period for a Eurodollar Borrowing: 



        (a)   the
Administrative Agent determines (which determination shall be final and conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBOR Rate for such Interest Period; or 



        (b)   the
Administrative Agent is advised in writing by the Required Lenders that the Adjusted LIBOR Rate for such Interest Period will not adequately and fairly reflect the
cost to such 



36







 




Lenders
of making or maintaining their Loans included in such Borrowing for such Interest Period; 




then
the Administrative Agent shall give written notice thereof to Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. 


        SECTION 2.12    Increased Costs.    (a) If any
Change in Law shall: 



          (i)  impose,
modify or deem applicable any reserve, special deposit or similar requirement against property of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBOR Rate) or the Issuing Bank; or 


         (ii)  impose
on any Lender or the Issuing Bank or the London interbank market any other condition affecting this Agreement or Eurodollar Loans made by such Lender or any
Letter of Credit or participation therein; 




and
the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to increase
the cost to such Lender, the Issuing Bank or such Lender's or the Issuing Bank's holding company, if any, of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of
any sum received or receivable by such Lender or the Issuing Bank hereunder (whether of principal, interest or otherwise), then Borrower will pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered, it being understood
that, to the extent duplicative of the provisions of Section 2.15, this Section 2.12 shall
not apply to Taxes. 


        (b)   If
any Lender or the Issuing Bank determines (in good faith, but in its sole absolute discretion) that any Change in Law regarding capital requirements has or would have
the effect of reducing the rate of return on such Lender's or the Issuing Bank's capital or on the capital of such Lender's or the Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the Issuing Bank, to a level below that which such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's holding company could have achieved but for such Change in Law (taking into consideration such Lender's or the Issuing Bank's policies and the policies of
such Lender's or the Issuing Bank's holding company with respect to capital adequacy), then from time to time Borrower will pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding company for any such reduction suffered. 


        (c)   A
certificate of a Lender or the Issuing Bank setting forth in reasonable detail the amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.12 shall be delivered to Borrower (with
a copy to the Administrative Agent) and shall be conclusive and binding absent manifest error. Borrower shall pay such Lender or the Issuing Bank, as the case may be, the amount shown as due on any
such certificate within 10 Business Days after receipt thereof. 


        (d)   Failure
or delay on the part of any Lender or the Issuing Bank to demand compensation pursuant to this  Section 2.12 shall not constitute a waiver of such Lender's or the Issuing Bank's right to demand such
compensation;  provided that Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this  Section 2.12 for any increased
costs or reductions incurred more than 180 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies 


37







 



Borrower
of the Change in Law giving rise to such increased costs or reductions and of such Lender's or the Issuing Bank's intention to claim compensation therefor;  provided, further, that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall not begin earlier than the date of effectiveness of the Change in Law. 



        SECTION 2.13    Breakage Payments.    In the
event of (a) the payment or prepayment, whether optional or mandatory, of any principal of any Eurodollar Loan earlier than the last day of an Interest Period applicable thereto (including as a
result of an Event of Default), (b) the conversion of any Eurodollar Loan earlier than the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any notice delivered pursuant hereto or (d) the assignment of any Eurodollar Loan earlier than the last day of the
Interest Period applicable thereto as a result of a request by Borrower pursuant to Section 2.16, then, in
any such event, Borrower shall compensate each Lender for the loss (other than a loss of anticipated profits), cost and expense attributable to such event. In the case of a Eurodollar Loan, such loss,
cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBOR Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current
Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable
amount and period from other banks in the Eurodollar market. A certificate of any Lender setting forth in reasonable detail any amount or amounts that such Lender is entitled to receive pursuant to
this Section 2.13 shall be delivered to Borrower (with a copy to the Administrative Agent) and shall be conclusive and binding absent manifest
error. Borrower shall pay such Lender the amount shown as due on any such certificate within 10 Business Days after receipt thereof. 


        SECTION 2.14    Payments Generally; Pro Rata Treatment; Sharing of
Setoffs.    (a) Borrower shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal, interest, fees or
Reimbursement Obligations, or of amounts payable under Section 2.12, 2.13 or  2.15, or otherwise) on or
before the time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without setoff, deduction or counterclaim. Any amounts received after such
time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 677 Washington Boulevard, Stamford, Connecticut, except payments to be made directly to the Issuing Bank or Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.12, 2.13,  2.15 and 10.03 shall be made directly to the persons entitled thereto and payments pursuant to other
Loan Documents shall be made to the persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other person to the appropriate
recipient promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, unless specified otherwise, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan
Document shall be made in dollars, except as expressly specified otherwise. 


        (b)   If
at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, Reimbursement Obligations, interest
and fees then due hereunder, such funds shall be applied (i) first, towards payment 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 


38







 



such
parties, and (ii) second, towards payment of principal and Reimbursement Obligations then due hereunder, ratably among the parties entitled
thereto in accordance with the amounts of principal and Reimbursement Obligations then due to such parties. 


        (c)   If
any Lender shall, by exercising any right of setoff or counterclaim or otherwise (including by exercise of its rights under the Pledge Agreements), obtain payment in
respect of any principal of or interest on any of its Revolving Loans, Term Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any other
Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Revolving Loans, Term Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans, Term Loans and participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by Borrower pursuant to and in accordance with the express terms of
this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to Borrower or any of its Subsidiaries or Affiliates (as to which the provisions of this paragraph shall apply). Each Loan Party consents to the foregoing and agrees, to the
extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. If under applicable bankruptcy, insolvency or
any similar law any Secured Party receives a secured claim in lieu of a setoff or counterclaim to which this Section 2.14(c) applies, such
Secured Party shall to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights to which the Secured Party is entitled under this  Section 2.14(c)to share in the benefits of the recovery of such secured claim. 


        (d)   Unless
the Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the
Lenders hereunder that Borrower will not make such payment, the Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. 



        (e)   If
any Lender shall fail to make any payment required to be made by it pursuant to Section 2.02(c),  2.14(d), 2.17(d),
2.18(d),  2.18(e) or 10.03(d), then the Administrative Agent may, in its discretion (notwithstanding any
contrary
provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid. 


        SECTION 2.15    Taxes.    (a) Any and all
payments by or on account of any obligation of Borrower hereunder or under any other Loan Document shall be made without setoff, counterclaim or other defense and free and clear of and without
deduction or withholding for any and all Indemnified Taxes; provided that if Borrower shall be required by law to deduct any Indemnified Taxes from such 


39







 



payments,
then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions or withholdings applicable to additional sums payable under
this Section 2.15) the Administrative Agent, any Lender or the Issuing Bank, as the case may be, receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii) Borrower shall make such deductions or withholdings and (iii) Borrower shall pay the full amount deducted or withheld
to the relevant Governmental Authority in accordance with applicable law. 


        (b)   In
addition, Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. 



        (c)   Borrower
shall indemnify the Administrative Agent, each Lender and the Issuing Bank, within 10 Business Days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or with respect to any payment by or on account of any obligation of Borrower
hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this  Section 2.15) and any penalties and
interest arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Lender or the Issuing Bank, or
by the Administrative Agent on its own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive absent manifest error. 


        (d)   As
soon as practicable after any payment of Indemnified Taxes or Other Taxes and in any event within 30 days of any such payment being due, by Borrower to a
Governmental Authority, Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. 



        (e)   Any
Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by Borrower or the Administrative Agent as will permit such payments to be made without
withholding or at a reduced rate. Each Foreign Lender shall (i) furnish either (a) two accurate and complete originally executed U.S. Internal Revenue Service
Form W-8BEN (or successor form) or (b) an accurate and complete U.S. Internal Revenue Service Form W-8ECI (or successor form), certifying, in either case,
to such Foreign Lender's legal entitlement to an exemption or reduction from U.S. federal withholding tax with respect to all interest payments hereunder, and (ii) to the extent it may lawfully
do so at such times, upon reasonable request by Borrower or the Administrative Agent, provide a new Form W-8BEN (or successor form) or Form W-8ECI (or successor
form) upon the expiration or obsolescence of any previously delivered form to reconfirm any complete exemption from, or any entitlement to a reduction in, U.S. federal withholding tax with respect to
any interest payment hereunder; provided that any Foreign Lender that is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code
shall also furnish a "Non-Bank Certificate" in the form of Exhibit N if it is furnishing a Form W-8BEN. 



        (f)    If
the Administrative Agent or a Lender (or an assignee) determines in its reasonable discretion that it has received a refund of any Indemnified Taxes or Other Taxes as
to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to this Section 2.15, it
shall pay over such refund to Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by Borrower under this  Section 2.15 with respect to the Indemnified Taxes or
the Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of 


40







 



the
Administrative Agent or such Lender (or assignee) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund);  provided, however, that Borrower, upon the request of the Administrative Agent or such Lender (or
assignee), agrees to repay the amount paid over to Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender (or assignee) within a reasonable time (not to exceed 20 days) after receipt of written notice that the Administrative Agent or such Lender
(or assignee) is required to repay such refund to such Governmental Authority. Nothing contained in this Section 2.15(f) shall require the
Administrative Agent or any Lender (or assignee) to make available its Tax Returns or any other information which it deems confidential to Borrower or any other person. Notwithstanding anything to the
contrary, in no event will any Lender be required to pay any amount to Borrower the payment of which would place such Lender in a less favorable net after-tax position than such Lender
would have been in if the additional amounts giving rise to such refund of any Indemnified Taxes or Other Taxes had never been paid. 



        SECTION 2.16    Mitigation Obligations; Replacement of Lenders.    



        (a)    Mitigation of Obligations.    If any Lender requests compensation under  Section 2.12, or if Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans
hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.15, as the
case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. A certificate setting forth such costs and expenses in reasonable detail submitted by
such Lender to the Administrative Agent shall be conclusive absent manifest error. 


        (b)    Replacement of Lenders.    If any Lender requests compensation under  Section 2.12, or if Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.15, or if any Lender defaults (a "Defaulting Lender") in its obligation to
fund (a "Funding Default") any Loan (a "Defaulted Loan") hereunder, then Borrower may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in Section 10.04), all of its interests, rights and obligations under this Agreement to an assignee selected by Borrower that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Commitment is being assigned, the Issuing Bank and Swingline Lender), which consents shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and participations in LC Disbursements and Swingline Loans, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder (assuming for this purpose that the Loans of such Lender were being prepaid) from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under  Section 2.12 or
payments required to be made pursuant to Section 2.15, such assignment
will result in a material reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply. 



41







 




        (c)    Defaulting Lenders.    Anything contained herein to the contrary notwithstanding, during any Default Period
with respect to a Defaulting Lender, such Defaulting Lender shall be deemed not to be a "Lender" for purposes of voting on any matters (including the granting of any consents or waivers) with respect
to any of the Loan Documents; to the extent permitted by applicable law, until such time as the Default Excess with respect to such Defaulting Lender shall have been reduced to zero, any voluntary
prepayment of the Loans shall, if Borrower so directs at the time of making such voluntary prepayment, be applied to the Loans of other Lenders as if such Defaulting Lender had no Loans outstanding
and the Revolving Exposure of such Defaulting Lender were zero, and any mandatory prepayment of the Loans shall, if Borrower so directs at the time of making such mandatory prepayment, be applied to
the Loans of other Lenders (but not to the Loans of such Defaulting Lender) as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it
being understood and agreed that Borrower shall be entitled to retain any portion of any mandatory prepayment of the Loans that is not paid to such Defaulting Lender solely as a result of the
operation of the provisions of this clause (c). No Commitment of any Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in this  Section 2.16(c),
performance by Borrower of its obligations hereunder and the other Loan Documents shall not be excused or otherwise modified as
a result of any Funding Default or the operation of this Section 2.16(c); such Defaulting Lender's Revolving Commitment and Term Loan Commitment
shall be excluded for purposes of calculating the commitment fee payable to such Lender in respect of any day during any Default Period with respect to such Defaulting Lender, and such Defaulting
Lender will not be entitled to receive any commitment fee pursuant to Section 2.05(a) with respect to such Defaulting Lender's Commitment in
respect of any Default Period with respect to such Defaulting Lender; and the Revolving Exposure as at any date of determination shall be calculated as if such Defaulting Lender had furnished all of
its Defaulted Loans. The rights and remedies against a Defaulting Lender under this Section 2.16(c) are in addition to other rights and remedies
which Borrower may have against such Defaulting Lender with respect to any Funding Default and which the Administrative Agent or any Lender may have against such Defaulting Lender with respect to any
Funding Default. 




        SECTION 2.17    Swingline Loans.    



        (a)    Swingline Commitment.    Subject to the terms and conditions set forth herein, the Swingline Lender agrees to
make Swingline Loans to Borrower from time to time during the Revolving Availability Period, in an aggregate principal amount at any time outstanding that will not result in (i) the aggregate
principal amount of outstanding Swingline Loans exceeding $30,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total Revolving Commitments;  provided that the Swingline Lender
shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Within the foregoing
limits and subject to the terms and conditions set forth herein, Borrower may borrow, repay and reborrow Swingline Loans. 



        (b)    Swingline Loans.    To request a Swingline Loan, Borrower shall deliver, by hand delivery or telecopy, a duly
completed and executed Borrowing Request to the Administrative Agent and the Swingline Lender, not later than 2:00 p.m., New York City time, on the day of a proposed Swingline Loan. Each such
notice shall be irrevocable and shall specify the requested date (which shall be a Business Day) and the amount of the requested Swingline Loan. Each Swingline Loan shall be an ABR Loan. The Swingline
Lender shall make each Swingline Loan available to Borrower by means of a credit to the general deposit account of Borrower with the Swingline Lender (or, in the case of a Swingline Loan made to
finance the reimbursement of an LC Disbursement as provided in Section 2.18(e), by remittance to the Issuing Bank) by 3:00 p.m., New York
City time, on the requested date of such Swingline Loan. Borrower shall not request a Swingline Loan if at the time of or immediately after giving effect to the Extension of Credit contemplated by
such request a Default has occurred and is continuing or would result therefrom. 



42







 




Swingline
Loans shall be made in minimum amounts of $1.0 million and integral multiples of $500,000 above such amount. 



        (c)    Prepayment.    Borrower shall have the right at any time and from time to time to repay any Swingline Loan, in
whole or in part, without premium or penalty, upon giving written notice to the Swingline Lender and the Administrative Agent before 2:00 p.m., New York City time, on the proposed date of
repayment. 


        (d)    Participations.    The Swingline Lender may at any time in its discretion by written notice given to the
Administrative Agent (provided such notice requirement shall not apply if the Swingline Lender and the Administrative Agent are the same entity) not
later than 11:00 A.M., New York City time, on the next succeeding Business Day following such notice require the Revolving Lenders to acquire participations on such Business Day in all or a
portion of the Swingline Loans then outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of such notice,
the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Lender's Pro Rata Percentage of such Swingline Loan or Loans. Each Revolving Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender's Pro Rata Percentage of such
Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever (so long as such payment shall not cause such Lender's Revolving Exposure to exceed such Lender's Revolving Commitment). Each
Revolving Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in  Section 2.02(c) with respect to Loans made
by such Lender (and Section 2.02 shall apply,  mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Swingline Lender the
amounts so received by it from the Revolving Lenders. The Administrative Agent shall notify Borrower of any participations in any Swingline Loan acquired by the Revolving Lenders pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from
Borrower (or other party on behalf of Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to
the Administrative Agent. Any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made their payments
pursuant to this paragraph, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve Borrower of any default in the payment
thereof. 




        SECTION 2.18    Letters of Credit    



        (a)    General.    Subject to the terms and conditions set forth herein, Borrower may request the Issuing Bank, and
the Issuing Bank agrees, to issue Letters of Credit for its own account or the account of a Subsidiary in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and
from time to time during the Revolving Availability Period (provided that Borrower shall be a co-applicant, and be jointly and severally
liable, with respect to each Letter of Credit issued for the account of a Subsidiary). The Issuing Bank shall have no obligation to issue, and Borrower shall not request the issuance of, any Letter of
Credit at any time if after giving effect to such issuance, the LC Exposure would exceed the LC Commitment or the total Revolving Exposure would exceed the total Revolving Commitments. In the event of
any 



43







 

inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by Borrower to, or entered into
by Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control. 


        (b)    Request for Issuance, Amendment, Renewal, Extension; Certain Conditions.    To request the issuance of a Letter
of Credit or the amendment, renewal or extension of an outstanding Letter of Credit, Borrower shall hand deliver or telecopy (or transmit by electronic communication, if arrangements for doing so have
been approved by the Issuing Bank) an LC Request to the Issuing Bank and the Administrative Agent not later than 11:00 a.m. on the third Business Day preceding the requested date of issuance,
amendment, renewal or extension (or such later date and time as is acceptable to the Issuing Bank). 


        A
request for an initial issuance of a Letter of Credit shall specify in form and detail satisfactory to the Issuing Bank: 



          (i)  the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); 


         (ii)  the
amount thereof; 


        (iii)  the
expiry date thereof (which shall not be later than the close of business on the Letter of Credit Expiration Date); 


        (iv)  the
name and address of the beneficiary thereof; 


         (v)  whether
the Letter of Credit is to be issued for its own account or for the account of one of its Subsidiaries (provided
that Borrower shall be a co-applicant, and therefore jointly and severally liable, with respect to each Letter of Credit issued for the account of a Subsidiary); 


        (vi)  the
documents to be presented by such beneficiary in connection with any drawing thereunder; 


       (vii)  the
full text of any certificate to be presented by such beneficiary in connection with any drawing thereunder; and 


      (viii)  such
other matters as the Issuing Bank may reasonably require. 




        A
request for an amendment, renewal or extension of any outstanding Letter of Credit shall specify in form and detail satisfactory to the Issuing Bank: 



          (i)  the
Letter of Credit to be amended, renewed or extended; 


         (ii)  the
proposed date of amendment, renewal or extension thereof (which shall be a Business Day); 



        (iii)  the
nature of the proposed amendment, renewal or extension; and 


        (iv)  such
other matters as the Issuing Bank may reasonably require. 




If
requested by the Issuing Bank, Borrower also shall submit a letter of credit application on the Issuing Bank's standard form in connection with any request for a Letter of Credit. A Letter of
Credit shall be issued, amended, renewed or extended only if (and, upon issuance, amendment, renewal or extension of each Letter of Credit, Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure shall not exceed the LC Commitment, (ii) the total Revolving Exposures shall not exceed the
total Revolving Commitments and the conditions set forth in Article IV in respect of such issuance, amendment, renewal or extension shall have
been satisfied. Unless the Issuing Bank shall agree 



44







 

otherwise,
no Letter of Credit shall be in an initial amount less than $100,000, in the case of a Commercial Letter of Credit, or $500,000, in the case of a Standby Letter of Credit, or is to be
denominated in a currency other than dollars. If at any time the dollar equivalent of the LC Exposure exceeds the LC Commitment by more than 5% for more than 10 days, the Borrower shall within
2 Business Days thereafter cash collaterize such amount in the manner described in Section 2.18(i). 


        (c)    Expiration Date.    Each Letter of Credit shall expire at or prior to the close of business on the earlier of
(i) in the case of a Standby Letter of Credit, (x) the date which is one year after the date of the issuance of such Standby Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (y) the Letter of Credit Expiration Date and (ii) in the case of a Commercial Letter of Credit, (x) the date that is
180 days after the date of issuance of such Commercial Letter of Credit (or, in the case of any renewal or extension thereof, 180 days after such renewal or extension) and (y) the
Letter of Credit Expiration Date. 


        (d)    Participations.    By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the
amount thereof) and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby irrevocably grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender's Pro Rata Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such
Revolving Lender's Pro Rata Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by Borrower on the date due as provided in  Section 2.18(e), or of any reimbursement
payment required to be refunded to Borrower for any reason. Each Revolving Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Commitments, and that each such payment shall be
made without any offset, abatement, withholding or reduction whatsoever. 


        (e)    Reimbursement.    (i) If the Issuing Bank shall make any LC Disbursement in respect of a Letter of
Credit, Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank an amount equal to such LC Disbursement not later than 3:00 p.m., New York City time, on the date that such
LC Disbursement is made if Borrower shall have received notice of such LC Disbursement prior to 11:00 a.m., New York City time, on such date, or, if such notice has not been received by
Borrower
prior to such time on such date, then not later than 3:00 p.m., New York City time, on the Business Day immediately following the day that Borrower receives such notice;  provided that Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance with  Section 2.03 that such payment be financed with ABR Revolving Loans in an equivalent amount and, to the extent so
financed, Borrower's obligation
to make such payment shall be discharged and replaced by the resulting ABR Revolving Loans. 


         (ii)  If
Borrower fails to make such payment when due, the Issuing Bank shall notify the Administrative Agent and the Administrative Agent shall notify each Revolving Lender
of the applicable LC Disbursement, the payment then due from Borrower in respect thereof and such Revolving Lender's Pro Rata Percentage thereof. Each Revolving Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent not later than 2:00 p.m., New York City time, on such date (or, if such Revolving Lender shall have received such notice later than 12:00
noon, New York City time, on any day, not later than 11:00 a.m., New York City time, on the immediately following Business Day), an amount equal to such Revolving Lender's Pro Rata 



45







 




Percentage
of the unreimbursed LC Disbursement in the same manner as provided in Section 2.02(c) with respect to Revolving Loans made by such
Revolving Lender, and the Administrative Agent will promptly pay to the Issuing Bank the amounts so received by it from the Revolving Lenders. The Administrative Agent will promptly pay to the Issuing
Bank any amounts received by it from Borrower pursuant to the above paragraph prior to the time that any Revolving Lender makes any payment pursuant to the preceding sentence and any such amounts
received by the Administrative Agent from Borrower thereafter will be promptly remitted by the Administrative Agent to the Revolving Lenders that shall have made such payments and to the Issuing Bank,
as appropriate. 


        (iii)  If
any Revolving Lender shall not have made its Pro Rata Percentage of such LC Disbursement available to the Administrative Agent as provided above, each of such
Revolving Lender and Borrower severally agrees to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with the foregoing to but
excluding the date such amount is paid, to the Administrative Agent for the account of the Issuing Bank at (i) in the case of Borrower, the rate per annum set forth in  Section 2.18(h) and
(ii) in the case of such Lender, at a rate determined by the Administrative Agent in accordance with banking industry
rules or practices on interbank compensation. 


        (f)    Obligations Absolute.    The Reimbursement Obligation of Borrower as provided in  Section 2.18(e) shall be absolute,
unconditional and irrevocable, and shall be paid and performed strictly in accordance with the terms of this
Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein;
(ii) any draft or other document presented under a Letter of Credit being proved to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that fails to comply with the terms of such Letter of
Credit; (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this  Section 2.18, constitute a legal or
equitable discharge of, or provide a right of setoff against, the obligations of Borrower hereunder;
(v) the fact that a Default shall have occurred and be continuing; or (vi) any material adverse change in the business, property, results of operations, prospects or condition, financial
or otherwise, of Borrower and its Subsidiaries. None of the Agents, the Lenders, the Issuing Bank or any of their Affiliates shall have any liability or responsibility by reason of or in connection
with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make
a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank;  provided that the foregoing shall not be construed to
excuse the Issuing Bank from liability to Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by Borrower to the extent permitted by applicable law) suffered by Borrower that are caused by the Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial
compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation,
regardless of 



46







 




any
notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. 


        (g)    Disbursement Procedures.    The Issuing Bank shall, promptly following its receipt thereof, examine all
documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly give written notice to the Administrative Agent and Borrower of such demand for payment
and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall
not relieve Borrower of its Reimbursement Obligation to the Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement (other than with respect to the timing of such Reimbursement
Obligation set forth in Section 2.18(e)). 


        (h)    Interim Interest.    If the Issuing Bank shall make any LC Disbursement, then, unless Borrower shall reimburse
such LC Disbursement in full within one Business Day from the date such LC Disbursement is made, the unpaid amount thereof shall bear interest payable on demand, for each day from and including the
date such LC Disbursement is made to but excluding the date that Borrower reimburses such LC Disbursement, at the rate per annum determined pursuant to  Section 2.06(c). Interest accrued pursuant to
this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and
after the date of payment by any Revolving Lender pursuant to Section 2.18(e) to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment. 


        (i)    Cash Collateralization.    If any Event of Default shall occur and be continuing, on the Business Day that
Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing greater than 50%
of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, Borrower shall deposit in the LC Sub-Account, in the name of the Collateral Agent and for the
benefit of the Revolving Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that
the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to Borrower described in paragraph (g) or (h) of Article VIII. Funds in the LC
Sub-Account shall be applied by the Collateral Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of outstanding Reimbursement Obligations or, if the maturity of the Loans has been accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure), be applied to satisfy other Obligations of Borrower under this Agreement. If Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount plus any accrued interest or realized profits with respect to such amounts (to the extent
not applied as aforesaid) shall be returned to Borrower within three Business Days after all Events of Default have been cured or waived. 



        (j)    Additional Issuing Banks.    Borrower may, at any time and from time to time, designate one or more additional
Revolving Lenders to act as an issuing bank under the terms of this Agreement, with the consent of the Administrative Agent (which consent shall not be unreasonable withheld), the Issuing Bank and
such Revolving Lender(s). Any Lender designated as an issuing bank pursuant to this paragraph (j) shall be deemed (in addition to being a Revolving Lender) to be the Issuing Bank with respect
to Letters of Credit issued or to be issued by such Revolving Lender, and all references herein and in the other Loan Documents to the term "Issuing Bank" shall, with respect to such Letters of
Credit, be deemed to refer to such Revolving Lender in its capacity as Issuing Bank, as the context shall require. 



47













  



        (k)    Resignation or Removal of the Issuing Bank.    The Issuing Bank may resign as Issuing Bank hereunder at any
time upon at least 30 days' prior notice to the Lenders, the Administrative Agent and Borrower. The Issuing Bank may be replaced at any time by written agreement among Borrower, each Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement of the Issuing Bank or any such additional Issuing Bank. At the time any
such resignation or replacement shall become effective, Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to  Section 2.05(c). From and after the
effective date of any such resignation or replacement or addition, as applicable, (i) the successor or
additional Issuing Bank shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to Letters of Credit to be issued by it thereafter and (ii) references
herein to the term "Issuing Bank" shall be deemed to refer to such successor or such addition or to any previous Issuing Bank, or to such successor or such addition and all previous Issuing Banks, as
the context shall require. After the resignation or replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not be required to issue additional Letters of
Credit. If at any time there is more than one Issuing Bank hereunder, Borrower may, in its discretion, select which Issuing Bank is to issue any particular Letter of Credit. 


        (l)    Other.    The Issuing Bank shall be under no obligation to issue any Letter of Credit if 



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


         (ii)  the
issuance of such Letter of Credit would violate one or more policies of the Issuing Bank. 




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



ARTICLE III  


 REPRESENTATIONS AND WARRANTIES  


        Each Loan Party represents and warrants to the Administrative Agent, the Collateral Agent, the Issuing Bank and each of the Lenders (with references to the
Companies being references thereto after giving effect to the Transactions unless otherwise expressly stated) that: 


        SECTION 3.01    Organization; Powers.    Each Company (a) is
duly organized and validly existing under the laws of the jurisdiction of its organization, (b) has all requisite power and authority to carry on its business as now conducted and to own and
lease its property if necessary to conduct such business and (c) is qualified and in good standing (to the extent such concept is applicable in the 


48







 



applicable
jurisdiction) to do business in every jurisdiction where such qualification is required, except in such jurisdictions where the failure to so qualify or be in good standing, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. There is no existing default under any Organizational Document of any Company or any event which, with the
giving of notice or passage of time or both, would constitute a default by any party thereunder. 


        SECTION 3.02    Authorization; Enforceability.    The Transactions to
be entered into by each Loan Party are within such Loan Party's powers and have been duly authorized by all necessary action on the part of such Loan Party. This Agreement has been duly executed and
delivered by each Loan Party and constitutes, and each other Loan Document to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. 


        SECTION 3.03    No Conflicts.    Except as set forth on  Schedule 3.03, the Transactions
(a) do not require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except (i) such as have been obtained or made and are in full force and effect, (ii) filings necessary to perfect Liens created by the Loan Documents and
(iii) consents, approvals, registrations, filings, permits or actions the failure to obtain or perform which could not reasonably be expected to result in a Material Adverse Effect,
(b) will not violate the Organizational Documents of any Company or any judgment, decree or order of any Governmental Authority applicable to any Company, (c) will not violate or result
in a default or require any consent or approval under any indenture, material agreement, Organizational Document or other material instrument binding upon any Company or its property, or give rise to
a right thereunder to require any payment to be made by any Company, except
for violations, defaults or the creation of such rights that could not reasonably be expected to result in a Material Adverse Effect, and (d) will not result in the creation or imposition of
any Lien on any property of any Company, except Liens created by the Loan Documents and Permitted Liens. 



        SECTION 3.04    Financial Statements; Projections.    (a) Borrower has
heretofore delivered to the Lenders the consolidated balance sheets and related statements of income, stockholders' equity and cash flows of Borrower (x) as of and for the fiscal years ended
December 31, 2001, 2002 and 2003, audited by and accompanied by the unqualified opinion of PricewaterhouseCoopers LLP, independent public accountants, and (y) as of and for the
three-month period ended March 31, 2004 and for the comparable period of the preceding fiscal year, in each case, certified by the chief financial officer of Borrower. Such financial statements
and all financial statements delivered pursuant to Sections 5.01(a) and (b) have been prepared in
accordance with GAAP and present fairly and accurately the financial condition and results of operations and cash flows of Borrower as of the dates and for the periods to which they relate, subject to
year-end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (y) above. Except as set forth in such financial statements or in the
notes thereto, after giving effect to the Transactions, there are no liabilities of any Company of any kind, whether accrued, contingent, absolute, determined, determinable or otherwise, which could
reasonably be expected to result in a Material Adverse Effect, and there is no existing condition, situation or set of circumstances which could reasonably be expected to result in such a liability,
other than liabilities under the Loan Documents and the Senior Subordinated Note Documents. 


        (b)   Borrower
has heretofore delivered to the Lenders Borrower's unaudited pro forma consolidated balance sheet and statements
of income and cash flows and pro forma EBITDA for the fiscal year ended December 31, 2003, as of and for the three-month period ended
March 31, 2004 and for the latest four-quarter period ending more than 30 days prior to the Closing Date, in each case after giving effect to the Transactions as if they had
occurred on such date in the case of the balance sheet and as of the beginning of all periods presented in the case of the statements of income and cash 


49







 



flows.
Such pro forma financial statements have been prepared in good faith by the Loan Parties, based on the assumptions stated therein (which
assumptions are believed by the Loan Parties on the date hereof and on the Closing Date to be reasonable), are based on the best information available to the Loan Parties as of the date of delivery
thereof, accurately reflect all adjustments required to be made to give effect to the Transactions, and in accordance with Regulation S-X, and present fairly the  pro forma consolidated financial
position and results of operations of Borrower as of such date and for such periods, assuming that the Transactions had
occurred at such dates (it being understood that projections are subject to significant uncertainties and contingencies, many of which are beyond Borrower's control, and that no guarantee can be given
that such projections will be realized). 


        (c)   The
forecasts of financial performance of Borrower and its subsidiaries furnished to the Lenders for the period January 1, 2004 through December 31, 2008
have been prepared in good faith by Borrower and based on assumptions believed by Borrower to reasonable (it being understood that projections are subject to significant uncertainties and
contingencies, many of which are beyond Borrower's control, and that no guarantee can be given that such projections will be realized). 



        (d)   Since
December 31, 2003, there has been no event, change, circumstance or occurrence that, individually or in the aggregate, has had or could reasonably be
expected to result in a Material Adverse Effect. 


        SECTION 3.05    Properties.    (a) Each Company has good title to, or
valid leasehold interests in, all its property material to its business, free and clear of all Liens except for Permitted Liens and minor irregularities or deficiencies in title that, individually or
in the aggregate, do not interfere with its ability to conduct its business as currently conducted or to utilize such property for its intended purpose. The property of the Companies, taken as a
whole, (i) is in good operating order, condition and repair (ordinary wear and tear excepted), except to the extent that the failure to be in such condition could not reasonably be expected to
result in a Material Adverse Effect, and (ii) constitutes all the property which is required for the business and operations of the Companies as presently conducted. 


        (b)   No
Company has received any notice of, nor has any knowledge of, the occurrence or pendency or contemplation of any Casualty Event affecting all or any portion of its
property that could reasonably be expected to have a Material Adverse Effect. 


        (c)   Each
Company owns or has rights to use all of the property and all rights with respect to any of the foregoing used in, necessary for or material to each Company's
business as currently conducted. The use by each Company of such property and all such rights with respect to the foregoing do not infringe on the rights of any person other than such infringement
which could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. No claim has been made and remains outstanding that any Company's use of any property
does or may violate the rights of any third party that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. 


        SECTION 3.06    Intellectual Property.    



        (a)    Ownership/No Claims.    Each Loan Party owns, or is licensed to use, all patents, patent applications,
trademarks, trade names, servicemarks, copyrights, technology, trade secrets, proprietary information, domain names, know-how and processes necessary for the conduct of its business as
currently conducted (the "Intellectual Property"), except for those the failure to own or license which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. No claim has been asserted and is pending by any person challenging or questioning the use of any such Intellectual Property or the
validity or effectiveness of any such Intellectual Property, nor does any Loan Party know of any valid basis for any such claim. To the best knowledge of each Loan Party, the use of such Intellectual
Property by such Loan Party does 



50







 

not
infringe the rights of any person, except for such claims and infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 


        (b)    Registrations.    Except pursuant to licenses and other user agreements entered into by each Loan Party in the
ordinary course of business, on and as of the date hereof (i) each Loan Party owns and possesses the right to use, and has done nothing to authorize or enable any other person to use, any
copyright, patent or trademark and (ii) all registrations are valid and in full force and effect. 


        (c)    No Violations or Proceedings.    To each Loan Party's knowledge, on and as of the date hereof, there is no
material violation by others of any right of such Loan Party with respect to any copyright, patent or trademark except as may be set forth on  Schedule 3.06(c). 




        SECTION 3.07    Equity Interests and Subsidiaries.    (a)  Schedule 3.07(a) sets forth a
list of (i) all the Subsidiaries of Borrower and their jurisdiction of organization as of the Closing Date
and (ii) the number of each class of its Equity Interests authorized, and the number outstanding, on the Closing Date and the number of shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the Closing Date. All Equity Interests of each Company are duly and validly issued and are fully paid and non-assessable, and, other
than the Equity Interests of Borrower, are owned by Borrower, directly or indirectly through Wholly Owned Subsidiaries. Each Loan Party is the record and beneficial owner of, and has good and
marketable title to, the Equity Interests pledged by it under the Pledge Agreements, free of any and all Liens, rights or claims of other persons, except the security interest created by the Pledge
Agreements, and there are no outstanding warrants, options or other rights to purchase, or shareholder, voting trust or similar agreements outstanding with respect to, or property that is convertible
into, or that requires the issuance or sale of, any such Equity Interests. 


        (b)   Except
as set forth on Schedule 3.07(b), no consent of any person including any other general or limited partner,
any other member of a limited liability company, any other shareholder or any other trust beneficiary is necessary or reasonably desirable (from the perspective of a secured party) in connection with
the creation, perfection or first priority status of the security interest of the Collateral Agent in any Equity Interests pledged to the Collateral Agent for the benefit of the Secured Parties under
the Pledge Agreements or the exercise by the Collateral Agent of the voting or other rights provided for in the Pledge Agreements or the exercise of remedies in respect thereof. 


        (c)   An
accurate organization chart, showing the ownership structure of Borrower and each Subsidiary on the Closing Date, and after giving effect to the Transactions, is set
forth on Schedule 3.07(c). 



        SECTION 3.08    Litigation; Compliance with Laws.    (a) Except as set
forth on Schedule 3.08, there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority now pending or, to
the knowledge of any Company, overtly threatened against or affecting any Company or any business, property or rights of any Company (i) that involve any Loan Document or any of the
Transactions or (ii) could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. 



        (b)   Except
for matters covered by Section 3.18, no Company or any of its property is in violation of, nor will the
continued operation of its property as currently conducted violate, any Requirements of Law (including any zoning or building ordinance, code or approval or any building permits) or any restrictions
of record or agreements affecting any Company's Real Property or is in default with respect to any judgment, writ, injunction, decree, rule or order of any Governmental Authority, where such violation
or default, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. 


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        SECTION 3.09    Agreements.    (a) No Company is a party to any
agreement or instrument or subject to any corporate or other constitutional restriction that has resulted or could reasonably be expected to result in a Material Adverse Effect. 


        (b)   No
Company is in default in any manner under any provision of any indenture or other agreement or instrument evidencing Indebtedness, or any other agreement or
instrument to which it is a party or by which it or any of its property is or may be bound, where such default could reasonably be expected to result in a Material Adverse Effect, and no condition
exists which, with the giving of notice or the lapse of time or both, would constitute such a default. 


        SECTION 3.10    Federal Reserve Regulations.    (a) No Company is
engaged principally, or as one of its important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock. 



        (b)   No
part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, for any
purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Board, including Regulation T, U or X. The pledge of the Collateral pursuant to the
Pledge Agreements does not violate such regulations. 


        SECTION 3.11    Investment Company Act; Public Utility Holding Company
Act.    No Company is (a) an "investment company" or a company "controlled" by an "investment company," as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (b) a "holding company," an "affiliate" of a "holding company" or a "subsidiary company" of a "holding company," as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as amended. 


        SECTION 3.12    Use of Proceeds.    Borrower will use the proceeds of
(a) the Term Loans, the IPO and the issuance of the Senior Subordinated Notes to (i) repay $200.2 million of outstanding debt, as described on  Schedule B hereto, (ii) repay
$[    ]million of intercompany debt owed to ALLETE and its affiliates, as
described on Schedule B hereto, (iii) repurchase shares of Borrower's common stock from certain ALLETE employee benefit plans for an
approximate purchase price of $130.0 million, (iv) pay related fees and expenses and (v) use for general corporate purposes and (b) the Revolving Loans and Swingline Loans
on and after the Initial Funding Date for working capital and general corporate purposes (including to effect Permitted Acquisitions). 


        SECTION 3.13    Taxes.    Each Company has (a) timely filed or
caused to be timely filed all material federal income Tax Returns and all material state, local and foreign Tax Returns or materials required to have been filed by it and all such Tax Returns are true
and correct in all material respects and (b) duly and timely paid or caused to be duly and timely paid all Taxes (whether or not shown on any Tax Return) due and payable by it and all
assessments received by it, except Taxes (i) that are being contested in good faith by appropriate proceedings and for which such Company has set aside on its books adequate reserves in
accordance with GAAP or (ii) which could not, individually or in the aggregate, have a Material Adverse Effect. Each Company has made adequate provision in accordance with GAAP for all Taxes
not yet due and payable. Each Company is unaware of any proposed or pending tax assessments, deficiencies or audits that could be reasonably expected to, individually or in the aggregate, result in a
Material Adverse Effect. No Company has ever been a party to any understanding or arrangement constituting a "tax shelter" within the meaning of Section 6111(c), Section 6111(d) or
Section 6662(d)(2)(C)(iii) of the Code, or has ever "participated" in a "reportable transaction" within the meaning of Treasury Regulation Section 1.6011-4, except as
could not be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect. 


        SECTION 3.14    No Material Misstatements.    No
(a) information, report, financial statement, certificate, Borrowing Request, LC Request, exhibit or schedule furnished by any Company or 


52







 



(b) written
information, report or financial statement furnished on behalf of any Company to the Administrative Agent or any Lender in connection with the negotiation of any Loan Document or
included therein or delivered pursuant thereto (including the Confidential Information Memorandum), when taken as a whole, contained or contains any material misstatement of fact or omitted or omits
to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading as of the date such information is dated or
certified; provided that to the extent any such information, report, financial statement, exhibit or schedule was based upon or constitutes a forecast
or projection, each Company represents only that it acted in good faith and utilized assumptions deemed reasonable at the time of preparation and due care in the preparation of such information,
report, financial statement, exhibit or schedule (it being understood that projections are subject to significant uncertainties and contingencies, many of which are beyond Borrower's control, and that
no guarantee can be given that such projections will be realized). 


        SECTION 3.15    Labor Matters.    As of the date hereof and the
Closing Date, except as set forth on Schedule 3.15, there are no strikes, lockouts or slowdowns against any Company pending or, to the knowledge
of any Company, threatened. The hours worked by and payments made to employees of any Company have not been in violation of the Fair Labor Standards Act of 1938, as amended, or any other applicable
federal, state, local or foreign law dealing with such matters in any manner which could reasonably be expected to result in a Material Adverse Effect. All payments due from any Company, or for which
any claim may be made against any Company, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of such Company
except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect. The consummation of the Transactions will not give rise to any right of termination or right
of renegotiation on the part of any union under any collective bargaining agreement to which any Company is bound. 


        SECTION 3.16    Solvency.    Immediately after the consummation of the
Transactions to occur on the Initial Funding Date and immediately following the making of each Loan and after giving effect to the application of the proceeds of each Loan, (a) the fair value
of the properties of each Loan Party (on a consolidated basis with its Subsidiaries) will exceed its debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable
value of the property of each Loan Party (on a consolidated basis with its Subsidiaries) will be greater than the amount that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) each Loan Party (on a consolidated basis with its Subsidiaries) will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) each Loan Party (on a consolidated basis with
its Subsidiaries) will not have unreasonably small capital with which to conduct its business in which it is engaged as such business is now conducted and is proposed to be conducted following the
Closing Date. 


        SECTION 3.17    Employee Benefit Plans.    Except as set forth on  Schedule 3.17:
(a) Each Company and its ERISA Affiliates is in compliance in all material respects with the applicable provisions of ERISA
and the Code and the regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of any Company or any of its ERISA Affiliates or the imposition of a Lien on any of the property of any Company. The present value of all
accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed by more than $5.0 million the fair market value of the property of all such underfunded Plans. Using actuarial assumptions and
computation methods consistent with subpart I of subtitle E of Title IV of ERISA, the aggregate liabilities of each Company 


53







 



or
its ERISA Affiliates to all Multiemployer Plans in the event of a complete withdrawal therefrom, as of the close of the most recent fiscal year of each such Multiemployer Plan, could not reasonably
be expected to result in a Material Adverse Effect. 


        (b)   To
the extent applicable, each Foreign Plan has been maintained in substantial compliance with its terms and with the requirements of any and all applicable laws,
statutes, rules, regulations and orders and has been maintained, where required, in good standing with applicable regulatory authorities. No Company has incurred any material obligation in connection
with the termination of or withdrawal from any Foreign Plan. The present value of the accrued benefit liabilities (whether or not vested) under each Foreign Plan which is funded, determined as of the
end of the most recently ended fiscal year of the respective Company on the basis of actuarial assumptions, each of which is reasonable, did not exceed the current value of the property of such
Foreign Plan, and for each Foreign Plan which is not funded, the obligations of such Foreign Plan are properly accrued. 


        SECTION 3.18    Environmental Matters.    (a) Except as set forth in  Schedule 3.18 and
except as, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect: 



          (i)  The
Companies and their businesses, operations and Real Property are and in the last six years (or, with respect to any Real Property purchased or leased by a Company
during such period, such shorter period in which such Real Property was owned or leased by such Company) have been in substantial compliance with, and the Companies have no liability under,
Environmental Law; 


         (ii)  The
Companies have obtained all Environmental Permits required for the conduct of their businesses and operations, and the ownership, operation and use of their
property, under Environmental Law, all such Environmental Permits are valid and in good standing and, under the currently effective business plan of the Companies, no expenditures or operational
adjustments will be required in order to renew or modify such Environmental Permits during the next five years; 


        (iii)  There
has been no Release or threatened Release of Hazardous Material on, at, under or from any Real Property or facility presently or formerly owned, leased or
operated by the Companies or, to the Company's knowledge, their predecessors in interest that could result in liability by the Companies under Environmental Law; 


        (iv)  There
is no Environmental Claim pending or, to the knowledge of the Companies, threatened against the Companies, or relating to the Real Property currently or formerly
owned, leased or operated by the Companies or relating to the operations of the Companies, and there are no actions, activities, circumstances, conditions, events or incidents that could reasonably be
expected to form the basis of such an Environmental Claim; and 


         (v)  To
the knowledge of the Companies, no person with an indemnity or contribution obligation to the Companies relating to compliance with or liability under Environmental
Law is in default with respect to such obligation. 




        (b)   Except
as set forth in Schedule 3.18: 



          (i)  No
Company is obligated to perform any action or otherwise incur any expense under Environmental Law pursuant to any order, decree, judgment or agreement by which it is
bound or has assumed by contract or agreement, and no Company is conducting or financing any Response pursuant to any Environmental Law with respect to any Real Property or any other location, except
as, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect; 


         (ii)  No
Real Property or facility owned, operated or leased by the Companies and, to the knowledge of the Companies, no Real Property or facility formerly owned, operated or
leased by 



54







 




the
Companies or any of their predecessors in interest is (i) listed or proposed for listing on the National Priorities List promulgated pursuant to CERCLA or (ii) listed on the
Comprehensive Environmental Response, Compensation and Liability Information System promulgated pursuant to CERCLA or (iii) included on any similar list maintained by any Governmental Authority
including any such list relating to petroleum; 


        (iii)  No
Lien has been recorded or, to the knowledge of any Company, threatened under any Environmental Law with respect to any Real Property or property of the Companies; 



        (iv)  The
execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not require any notification, registration,
filing, reporting, disclosure, investigation, remediation or cleanup pursuant to any Governmental Real Property Disclosure Requirements or any other Environmental Law; and 


         (v)  The
Companies have made available to the Lenders all material records and files in the possession, custody or control of, or otherwise reasonably available to, the
Companies concerning compliance with or liability under Environmental Law, including those concerning the existence of Hazardous Material at Real Property or facilities currently or formerly owned,
operated, leased or used by the Companies. 




        SECTION
3.19    Insurance.    Schedule 3.19 sets forth a
true, complete and correct description of all insurance maintained by each Company as of the Closing Date. All insurance maintained by the Companies is in full force and effect, all premiums have been
duly paid and no Company has received notice of violation or cancellation thereof. Each Company has insurance in such amounts and covering such risks and liabilities as are customary for companies of
a similar size engaged in similar businesses in similar locations. 



        SECTION 3.20    Security Documents.    (a) The Pledge Agreements are
effective to create in favor of the Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, the Collateral and, when
(i) financing statements and other filings in appropriate form are filed in the offices specified on Schedule 2 to the Pledge Agreement,
(ii) the applicable steps described in the legal opinions of foreign counsel are complied with, and (iii) upon the taking of possession or control by the Collateral Agent of the
Collateral with respect to which a security interest may be perfected by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control
by the Collateral Agent is required by each Pledge Agreement), the Liens created by the Pledge Agreements shall constitute fully perfected Liens on, and security interests in, all right, title and
interest of the grantors thereunder in the Collateral subject to no Liens. 


        (b)   Each
Security Document delivered pursuant to Sections 5.11 and 5.12 will,
upon execution and delivery thereof, be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in,
all of the Loan Parties' right, title and interest in and to the Collateral thereunder, and when (i) all appropriate filings or recordings are made in the appropriate offices as may be required
under applicable law, (ii) the applicable steps described in the legal opinions of foreign counsel are complied with, and (iii) upon the taking of possession or control by the Collateral
Agent of the Collateral with respect to which a security interest may be perfected by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession
or control by the Collateral Agent is required by each Pledge Agreement), such Security Document will constitute fully perfected Liens on, and security interests in, all right, title and interest of
the Loan Parties in such Collateral, in each case subject to no Liens other than the applicable Permitted Liens. 



        SECTION 3.21    Anti-Terrorism Law.    (a) No Loan Party
and, to the knowledge of the Loan Parties, none of its Affiliates is in violation of any laws relating to terrorism or money laundering 


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("Anti-Terrorism Laws"), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the
"Executive Order"), and the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001,
Public Law 107-56. 


        (b)   No
Loan Party and to the knowledge of the Loan Parties, no Affiliate or broker or other agent of any Loan Party acting or benefiting in any capacity in connection with
the Loans is any of the following: 



          (i)  a
person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; 



         (ii)  a
person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive
Order; 


        (iii)  a
person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; 


        (iv)  a
person that commits, threatens or conspires to commit or supports "terrorism" as defined in the Executive Order; or 


         (v)  a
person that is named as a "specially designated national and blocked person" on the most current list published by the U.S. Treasury Department Office of Foreign
Assets Control ("OFAC") at its official website or any replacement website or other replacement official publication of such list. 




        (c)   No
Loan Party and, to the knowledge of the Loan Parties, no broker or other agent of any Loan Party acting in any capacity in connection with the Loans
(i) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in paragraph (b) above,
(ii) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law. 


        SECTION 3.22    Subordination of Senior Subordinated Notes.    The
Obligations are "Senior Debt," the Guaranteed Obligations are "Subsidiary Guarantor Senior Debt" and the Obligations and Guaranteed Obligations are "Designated Senior Debt," in each case, within the
meaning of the Senior Subordinated Note Documents. 


ARTICLE IV  


 CONDITIONS TO CREDIT EXTENSIONS  


        SECTION 4.01    Conditions to Initial Credit Extension.    The
obligation of each Lender and, if applicable, each Issuing Bank to fund the initial Credit Extension requested to be made by it shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Section 4.01. 



        (a)    Loan Documents.    All legal matters incident to this Agreement, the Credit Extensions hereunder and the other
Loan Documents shall be satisfactory to the Lenders, to the Issuing Bank and to the Administrative Agent and there shall have been delivered to the Administrative Agent an executed counterpart of each
of the Loan Documents. 


        (b)    Corporate Documents.    The Administrative Agent shall have received: 



          (i)  a
certificate of the secretary or assistant secretary of each Loan Party dated the Closing Date, certifying (A) that attached thereto is a true and complete copy
of each Organizational Document of such Loan Party certified (to the extent applicable) as of a recent 




56







 


date
by the Secretary of State of the state of its organization, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors or member of such
Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such person is a party and, in the case of Borrower, the borrowings hereunder, and that such resolutions
have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any Loan Document or any other
document delivered in connection herewith on behalf of such Loan Party (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant
secretary executing the certificate in this clause (i)); 


         (ii)  a
certificate as to the standing or status, as the case may be, of each Loan Party (in so-called "long-form" if available) as of a recent date,
from such Secretary of State; and 


        (iii)  such
other documents as the Lenders, the Issuing Bank or the Administrative Agent may reasonably request. 




        (c)    Officers' Certificate.    The Administrative Agent shall have received a certificate, dated the Closing Date
and signed by the chief executive officer and the chief financial officer of Borrower, confirming compliance with the conditions precedent set forth in this  Section 4.01 and Sections 4.02(b), (c) and  (d). 



        (d)    Financings and Other Transactions, Etc.    (i) The (A) IPO, (B) issuance of the Senior
Subordinated Notes, (C) repayment of $[    ] of Borrower's bank debt, as described on Schedule B hereto,
(D) repayment of $[    ] of intercompany debt, as described on Schedule B hereto and (E) payment
of fees and expenses in connection with the foregoing shall have been consummated or shall be consummated simultaneously on the Initial Funding Date, in each case in all material respects in
accordance with the terms hereof and the terms of the Transaction Documents, without the waiver or amendment of any such terms not approved by the Administrative Agent and the Arrangers other than any
waiver or amendment thereof that is not materially adverse to the interests of the Lenders. 


         (ii)  Borrower
shall have received not less than $125.0 million in gross proceeds from the issuance and sale of the Senior Subordinated Notes, and the Senior
Subordinated Note Agreement shall be in form and substance reasonably satisfactory to the Arrangers. 


        (iii)  Borrower
shall have received not less than $140.0 million in gross proceeds from the IPO and the IPO Documents shall be in form and substance reasonably
satisfactory to the Arrangers. 


        (iv)  The
Lenders shall be satisfied with the capitalization, the terms and conditions of any equity arrangements and the corporate or other organizational structure of the
Companies. 


         (v)  $[    ]
million of Borrower's outstanding debt and $[    ] million of intercompany debt owed to
ALLETE shall have been paid in full to the satisfaction of the Lenders with all liens in favor of the existing lenders being unconditionally released; the Administrative Agent shall have received a
"pay-off" letter or other evidence of repayment in form and substance reasonably satisfactory to the Administrative Agent with respect to all Material Indebtedness owed to third parties
being refinanced in the Refinancing; and the Administrative Agent shall have received from any person holding any Lien securing any such debt, such UCC termination statements, mortgage releases,
releases of assignments
of leases and rents, releases of security interests in Intellectual Property and other instruments, in each case in proper form for recording, as the Administrative Agent shall have reasonably
requested to release and terminate of record the Liens securing such debt. 


        (e)    Financial Statements, Pro Forma Balance Sheet; Projections.    The Lenders shall have received and shall be
satisfied with the form and substance of the financial statements described in Section 3.04 and with the forecasts of the financial performance
of Borrower and its Subsidiaries. 



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        (f)    Indebtedness and Minority Interests.    After giving effect to the Transactions and the other transactions
contemplated hereby, no Company shall have outstanding any Indebtedness or preferred stock other than (i) the Loans and Credit Extensions hereunder, (ii) the Senior Subordinated Notes,
(iii) the Indebtedness listed on Schedule 6.01(b) and (iv) Indebtedness owed to Borrower or any Subsidiary Guarantor. 


        (g)    Opinions of Counsel.    The Administrative Agent shall have received, on behalf of itself, the other Agents,
the Arrangers, the Lenders and the Issuing Bank, a favorable written opinion of (i) Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for ALLETE, parent company of the Loan
Parties, substantially to the effect set forth in Exhibit K-I, (ii) each local and foreign counsel listed on  Schedule 4.01(g), substantially
to the effect set forth in Exhibit K-2, in
each case (A) dated the Closing Date, (B) addressed to the Agents, the Issuing Bank and the Lenders and (C) covering such other matters relating to the Loan Documents and the
Transactions as the Administrative Agent shall reasonably request, and (iii) a copy of each legal opinion delivered under the other Transaction Documents, accompanied by reliance letters from
the party delivering such opinion authorizing the Agents, Lenders and the Issuing Bank to rely thereon as if such opinion were addressed to them. 


        (h)    Solvency Certificate.    The Administrative Agent shall have received a solvency certificate in the form of  Exhibit L,
dated the Closing Date and signed by the chief financial officer of Borrower. 



        (i)    Requirements of Law.    The Lenders shall be satisfied that Borrower, its Subsidiaries and the Transactions
shall be in full compliance with all material Requirements of Law, including Regulations T, U and X of the Board, and shall have received satisfactory evidence of such compliance reasonably requested
by them. 


        (j)    Consents.    The Lenders shall be satisfied that all requisite Governmental Authorities and third parties shall
have approved or consented to the Transactions, and there shall be no governmental or judicial action, actual or threatened, that has or would have, singly or in the aggregate, a reasonable likelihood
of restraining, preventing or imposing burdensome conditions on the Transactions or the other transactions contemplated hereby. 


        (k)    Litigation.    There shall be no litigation, public or private, or administrative proceedings, governmental
investigation or other legal or regulatory developments, actual or overtly threatened, that, singly or in the aggregate, could reasonably be expected to result in a Material Adverse Effect, or could
materially and adversely affect the ability of Borrower and the Subsidiaries to fully and timely perform their respective obligations under the Transaction Documents, or the ability of the parties to
consummate the financings contemplated hereby or the other Transactions. 


        (l)    Sources and Uses.    The sources and uses of the Loans shall be as set forth in  Section 3.12. 


        (m)    Fees.    The Lenders shall have received all Fees and other amounts due and payable on or prior to the Closing
Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses (including the legal fees and expenses of Cahill Gordon & Reindel LLP,
special counsel to the Agents, and the fees and expenses of any local counsel, foreign counsel, appraisers, consultants and other advisors to the Arrangers and Agents) required to be reimbursed or
paid by Borrower hereunder or under any other Loan Document. 


        (n)    Personal Property Requirements.    The Collateral Agent shall have received: 



          (i)  all
certificates representing or evidencing the Collateral accompanied by instruments of transfer and stock powers undated and endorsed in blank; 




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         (ii)  UCC
financing statements in appropriate form for filing under the UCC and such other documents under applicable Requirements of Law in each jurisdiction as may be
necessary or appropriate or, in the opinion of the Collateral Agent, desirable to perfect the Liens created, or purported to be created, by the Pledge Agreements; 



        (iii)  certified
copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all
effective financing statements, lien notices or comparable documents that name any Loan Party as debtor and that are filed in those state and county jurisdictions in which any Collateral of any Loan
Party is located and the state and county jurisdictions in which any Loan Party is organized or maintains its principal place of business and such
other searches that the Collateral Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Security Documents; and 



        (iv)  evidence
acceptable to the Collateral Agent of payment or arrangements for payment by the Loan Parties of all applicable recording taxes, fees, charges, costs and
expenses required for the recording of the Security Documents. 




        (o)    Minimum Consolidated EBITDA.    Borrower's pro forma
Consolidated EBITDA for the last four-quarter period ending more than 30 days prior to the Closing Date shall not be less than $200.0 million. 



        (p)    Escrow of Funds.    The Lenders shall be satisfied with Borrower's plans and arrangements to redeem the
Indebtedness set forth on Schedule B within 60 days of the Initial Funding Date and upon the funding of the Loans on the Initial Funding
Date hereunder the Borrower shall deposit the amount required to redeem such debt in escrow pursuant to an escrow agreement on terms and conditions and pursuant to documentation and with an escrow
agent reasonably satisfactory to the Arrangers until the redemption date. 




        SECTION 4.02    Conditions to All Credit Extensions.    The obligation
of each Lender and each Issuing Bank to make any Credit Extension (including the initial Credit Extension) shall be subject to, and to the satisfaction of, each of the conditions precedent set forth
below. 



        (a)    Notice.    The Administrative Agent shall have received a Borrowing Request as required by  Section 2.03 (or such notice
shall have been deemed given in accordance with Section 2.03)
if Loans are being requested or, in the case of the issuance, amendment, extension or renewal of a Letter of Credit, the Issuing Bank and the Administrative Agent shall have received a notice
requesting the issuance, amendment, extension or renewal of such Letter of Credit as required by Section 2.18(b) or, in the case of the Borrowing
of a Swingline Loan, the Swingline Lender and the Administrative Agent shall have received a Borrowing Request as required by Section 2.17(b). 


        (b)    No Default.    Borrower and each other Loan Party shall be in compliance in all material respects with all the
terms and provisions set forth herein and in each other Loan Document on its part to be observed or performed, and, at the time of and immediately after giving effect to such Credit Extension and the
application of the proceeds thereof, no Default shall have occurred and be continuing on such date. 


        (c)    Representations and Warranties.    Each of the representations and warranties made by any Loan Party set forth
in Article III hereof or in any other Loan Document shall be true and correct in all material respects (except that any representation and
warranty that is qualified as to "materiality" or "Material Adverse Effect" shall be true and correct in all respects) on and as of the date of such Credit Extension with the same effect as though
made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date. 



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        (d)    No Legal Bar.    No order, judgment or decree of any Governmental Authority shall purport to restrain any
Lender from making any Loans to be made by it. No injunction or other restraining order shall have been issued, shall be pending or noticed with respect to any action, suit or proceeding seeking to
enjoin or otherwise prevent the consummation of, or to recover any damages or obtain relief as a result of, the transactions contemplated by this Agreement or the making of Loans hereunder. 




        Each
of the delivery of a Borrowing Request or notice requesting the issuance, amendment, extension or renewal of a Letter of Credit and the acceptance by Borrower of the proceeds of
such Credit Extension shall constitute a representation and warranty by Borrower and each other Loan Party that on the date of such Credit Extension (both immediately before and after giving effect to
such Credit Extension and the application of the proceeds thereof) the conditions contained in this Section 4.02 have been satisfied. Borrower
shall provide such information (including calculations in reasonable detail of the covenants in Section 6.10) as the Administrative Agent may
reasonably request to confirm that the conditions in this Section 4.02 have been satisfied. 


ARTICLE V  


 AFFIRMATIVE COVENANTS  


        Each Loan Party warrants, covenants and agrees with each Lender that so long as this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, each Loan Party will, and will cause each of its
Subsidiaries to: 


        SECTION 5.01    Financial Statements, Reports, etc.    Furnish to the
Administrative Agent: 



        (a)    Annual Reports.    As soon as available and in any event within 90 days after the end of each fiscal
year (but no later than the date on which Borrower is required to file a Form 10-K under the Exchange Act), (i) the consolidated balance sheet of Borrower as of the
end of such fiscal year and related consolidated statements of income, cash flows and stockholders' equity for such fiscal year, in comparative form with such financial statements as of the end of,
and for, the preceding fiscal year, and notes thereto, all prepared in accordance with Regulation S-X and accompanied by
an opinion of PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (which opinion shall not be qualified as to scope or contain any going concern
qualification), stating that such financial statements fairly present, in all material respects, the consolidated financial condition, results of operations and cash flows of Borrower as of the dates
and for the periods specified in accordance with GAAP, and (ii) a management's discussion and analysis of the financial condition and results of operations for such fiscal year, as compared to
the previous fiscal year; provided that delivery of the Form 10-K shall satisfy clauses (i) and (ii) above; 


        (b)    Quarterly Reports.    As soon as available and in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year (but no later than the date on which Borrower is required to file a Form 10-Q under the Exchange Act), (i) the
consolidated balance sheet of Borrower as of the end of such fiscal quarter and related consolidated statements of income and cash flows for such fiscal quarter and for the then elapsed portion of the
fiscal year, in comparative form with the consolidated statements of income and cash flows for the comparable periods in the previous fiscal year, and notes thereto, all prepared in accordance with
Regulation S-X under the Securities Act and accompanied by a certificate of a Financial Officer stating that such financial statements fairly present, in all material respects, the
consolidated financial condition, results of operations and cash flows of Borrower as of the date and for the 



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periods
specified in accordance with GAAP consistently applied, and on a basis consistent with audited financial statements referred to in clause (a) of this  Section 5.01, subject to normal year-end
audit adjustments, and (ii) a management's discussion and analysis of the financial
condition and results of operations for such fiscal quarter and the then elapsed portion of the fiscal year, as compared to the comparable periods in the previous fiscal year;  provided that delivery of
the applicable Form 10-Q shall satisfy clauses (i) and (ii) above; 



        (c)    Financial Officer's Certificate.    (i) Concurrently with any delivery of financial statements under  Section 5.01(a) or (b) above, a Compliance Certificate certifying that no Default has
occurred or, if such a Default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with respect thereto; and (ii) concurrently with
any delivery of financial statements under Section 5.01 (a) or (b) above, a
Compliance Certificate setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the covenants contained in  Sections 6.07(e) and 6.10 (including the aggregate amount of Equity Interests for such period and the
uses therefor); 


        (d)    Public Reports.    Promptly after the same become publicly available, copies of all periodic and other reports,
proxy statements and other materials filed by any Company with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or
with any national securities exchange, or distributed to holders of its Indebtedness pursuant to the terms of the documentation governing such Indebtedness (or any trustee, agent or other
representative therefor), as the case may be; 


        (e)    Management Letters.    Promptly after the receipt thereof by any Company, a copy of any "management letter"
received by any such person from its certified public accountants and the management's responses thereto; and 


        (f)    Other Information.    Promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of any Company, or compliance with the terms of any Loan Document, as the Administrative Agent or any Lender may reasonably request. 




        SECTION 5.02    Litigation and Other Notices.    Furnish to the
Administrative Agent written notice of the following promptly (and, in any event, within three Business Days of the occurrence thereof): 



        (a)   any
Default, specifying the nature and extent thereof and the corrective action (if any) taken or proposed to be taken with respect thereto; 


        (b)   the
filing or commencement of any action, suit, litigation or proceeding, whether at law or in equity by or before any Governmental Authority, (i) against any
Company or any Affiliate thereof that could reasonably be expected to result in a Material Adverse Effect or (ii) with respect to any Loan Document; 


        (c)   any
development that has resulted in, or could reasonably be expected to result in a Material Adverse Effect; 


        (d)   the
occurrence of a Casualty Event that could reasonably be expected to result in a Material Adverse Effect; and 



        (e)   (i) the
incurrence of any Lien on, or claim asserted against any of the Collateral or (ii) the occurrence of any other event which could materially affect
the value of the Collateral. 




        SECTION 5.03    Existence; Businesses and Properties.    (a) Do or
cause to be done all things necessary to preserve, renew and maintain in full force and effect its legal existence, except as otherwise expressly permitted under  Section 6.05 or Section 6.06 or, in the case of any Subsidiary, where the failure to
perform such obligations, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. 


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        (b)   Do
or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, licenses, permits, privileges, franchises,
authorizations, patents, copyrights, trademarks and trade names material to the conduct of its business; maintain and operate such business in substantially the manner in which it is presently
conducted and operated; comply with all applicable Requirements of Law (including any and all zoning, building, Environmental Law, ordinance, code or approval or any building permits or any
restrictions of record or agreements affecting the Real Property) and decrees and orders of any Governmental Authority, whether now in effect or hereafter enacted, except where the failure to comply,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; pay and perform its material obligations under all Leases and Transaction Documents; and at
all times maintain, preserve and protect all property material to the conduct of such business and keep such property in good repair, working order and condition (other than wear and tear occurring in
the ordinary course of business) and from time to time make, or cause to be made, all needful and proper repairs, renewals, additions, improvements and replacements thereto necessary in order that the
business carried on in connection therewith may be properly conducted at all times; provided that nothing in this  Section 5.03(b) shall prevent
(i) sales of property, consolidations or mergers by or involving any Company in accordance with  Section 6.05 or Section 6.06; (ii) the
withdrawal by any Company of its
qualification as a foreign corporation in any jurisdiction where such withdrawal, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect; or
(iii) the abandonment by any Company of any rights, franchises, licenses, trademarks, trade names, copyrights or patents that such person reasonably determines are not useful to its business or
no longer commercially desirable. 


        SECTION 5.04    Insurance.    (a) Keep its insurable property
adequately insured at all times by financially sound and reputable insurers and maintain such other insurance, in each case, to such extent and against such risks as is customary with companies in the
same or similar businesses operating in the same or similar locations, including insurance with respect to properties material to the business of the Companies against such casualties and
contingencies and of such types and in such amounts with such deductibles as is customary in the case of similar businesses operating in the same or similar locations, including (i) physical
hazard insurance on an "all risk" basis, (ii) commercial general liability against claims for bodily injury, death or property damage covering any and all insurable claims,
(iii) business interruption insurance and (iv) worker's compensation insurance and such other insurance as may be required by any Requirement of Law;  provided that with respect to physical
hazard insurance, neither the Collateral Agent nor the applicable Company shall agree to the adjustment of any
claim in excess of $5.0 million thereunder without the consent of the other (such consent not to be unreasonably withheld or delayed); provided,  further, that no consent of any Company shall be required during an Event of Default. 



        (b)   All
such insurance shall (i) provide that no cancellation, material reduction in amount or material change in coverage thereof shall be effective until at least
30 days after receipt by the Collateral Agent of written notice thereof, (ii) name the Collateral Agent as additional insured on behalf of the Secured Parties (in the case of liability
insurance) or loss payee (in the case of property insurance), as applicable, and (iii) if reasonably requested by the Collateral Agent, include a breach of warranty clause. 


        SECTION 5.05    Obligations and Taxes.    (a) Pay its Indebtedness and
other obligations promptly and in accordance with their terms and pay and discharge promptly when due all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or
profits or in respect of its property, before the same shall become delinquent or in default, as well as all lawful claims for labor, services, materials and supplies or otherwise that, if unpaid,
might give rise to a Lien other than a Permitted Lien upon such properties or any part thereof; provided that such payment and discharge shall not be
required with respect to any such obligation, Tax, assessment, charge, levy or claim so long as (x)(i) the validity or amount thereof shall be contested in good faith by appropriate proceedings 


62







 



timely
instituted and diligently conducted and the applicable Company shall have set aside on its books adequate reserves or other appropriate provisions with respect thereto in accordance with GAAP
and (ii) such contest operates to suspend collection of the contested obligation, Tax, assessment or charge and enforcement of a Lien other than a Permitted Lien or (y) the
non-payment of all such obligations, Taxes, assessments, charges, levies or claims in the aggregate could not reasonably be expected to result in a Material Adverse Effect. 


        (b)   Timely
and correctly file all material Tax Returns required to be filed by it. 


        (c)   Borrower
does not intend to treat the Loans as being a "reportable transaction" within the meaning of Treasury Regulation Section 1.6011-4. In the
event Borrower determines to take any action inconsistent with such intention, it will promptly notify the Administrative Agent thereof. 


        SECTION 5.06    Employee Benefits.    (a) Comply in all material
respects with the applicable provisions of ERISA and the Code and (b) furnish to the Administrative Agent (x) as soon as practicable after, and in any event within 5 days after
any Responsible Officer of any Company knows or has reason to know that, any ERISA Event has occurred that, alone or together with any other ERISA Event could reasonably be expected to result in
liability of the Companies or any of their ERISA Affiliates in an aggregate amount that could reasonably be expected to have a Material Adverse Effect or the imposition of a Lien, a statement of a
Financial Officer of Borrower setting forth details as to such ERISA Event and the action, if any, that the Companies propose to take with respect thereto, and (y) upon request by the
Administrative Agent, copies of (i) each Schedule B (Actuarial Information) to the annual report (Form 5500 Series) filed by any Company or any ERISA Affiliate with the Internal
Revenue Service with respect to each Plan; (ii) the most recent actuarial valuation report for each Plan; (iii) all notices received by any Company or any ERISA Affiliate from a
Multiemployer Plan sponsor or any governmental agency concerning an ERISA Event; and (iv) such other documents or governmental reports or filings relating to any Plan (or employee benefit plan
sponsored or contributed to by any Company) as the Administrative Agent shall reasonably request. 


        SECTION 5.07    Maintaining Records; Access to Properties and Inspections; Annual
Meetings.    Keep proper books of record and account in which full, true and correct entries in conformity with GAAP and all Requirements of Law are made of all
dealings and transactions in relation to its business and activities. Each Company will permit any representatives designated by the Administrative Agent or any Lender
(after consultation with, and subject to coordination of visits by, the Administrative Agent), upon reasonable prior notice, to visit and inspect the financial records and the property of such Company
at reasonable times during normal business hours and to make extracts from and copies of such financial records, and permit any representatives designated by the Administrative Agent or any Lender to
discuss the affairs, finances, accounts and condition of any Company with the officers and employees thereof and advisors therefor (including independent accountants);  provided that, unless an Event of
Default has occurred and is continuing, such rights may only be exercised once per year. 



        SECTION 5.08    Use of Proceeds.    Use the proceeds of the Loans only
for the purposes set forth in Section 3.12 and request the issuance of Letters of Credit only for the purposes set forth in the definition of
Commercial Letter of Credit or Standby Letter of Credit, as the case may be. 


        SECTION 5.09    Compliance with Environmental Laws; Environmental
Reports.    (a) Comply, and cause all lessees and other persons occupying Real Property owned, operated or leased by any Company to comply, in all material respects
with all Environmental Laws and Environmental Permits applicable to its operations and Real Property; obtain and renew all material Environmental Permits applicable to its operations and Real
Property; and conduct all Responses required by, and in accordance with, Environmental Laws; provided that no Company shall be required to undertake any
Response to the extent that its obligation to do so is being contested in good faith and by proper proceedings and appropriate reserves are being maintained with respect to such circumstances in
accordance with GAAP. 


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        (b)   If
a Default caused by reason of a breach of Section 3.18 or  Section 5.09(a) shall have occurred and be continuing for more than 20 days
without the Companies commencing activities reasonably likely
to cure such Default, at the written request of the Administrative Agent or the Required Lenders through the Administrative Agent, provide to the Lenders within 45 days after such request, at
the expense of Borrower, an environmental assessment report regarding the matters which are the subject of such Default, including, where appropriate, any soil and/or groundwater sampling, prepared by
an environmental consulting firm and, in the form and substance, reasonably acceptable to the Administrative Agent and indicating the presence or absence of Hazardous Materials and the estimated cost
of any compliance or Response to address them. 


        SECTION 5.10    Interest Rate Protection.    No later than the 180th
day after the Closing Date, Borrower shall enter into, and for a minimum of two years thereafter maintain, Hedging Agreements with terms and conditions acceptable to the Administrative Agent that
result in at least 50% of the aggregate principal amount of Borrower's Consolidated Indebtedness being effectively subject to a fixed or maximum interest rate acceptable to the Administrative Agent. 



        SECTION 5.11    Additional Collateral; Additional Subsidiary
Guarantors.    With respect to any person that is or becomes a Wholly-Owned Subsidiary of any Loan Party after the Closing Date, promptly (and in any event within
30 days after such person becomes a Subsidiary) (a) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Pledge
Agreements or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the
other Secured Parties, a Lien on the Equity Interests of such new Subsidiary (or, in the case of any Foreign Subsidiary, Equity Interests representing 65% of the total voting power of all outstanding
Voting Stock of such Subsidiary) subject to no Liens other than Permitted Liens, (b) take all actions necessary to cause such Lien to be duly perfected to the extent required by such Pledge
Agreement in accordance with all applicable Requirements of Law, including (i) the delivery to the Collateral Agent of the certificates, if any, representing all of the Equity Interests of such
Subsidiary owned by a Loan Party (or, in the case of any Foreign Subsidiary, Equity Interests representing 65% of the total voting power of all outstanding Voting Stock of such Subsidiary), together
with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and (ii) the
filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent, (c) cause each new Subsidiary that is a Domestic Subsidiary to execute a Joinder
Agreement or such comparable documentation to become a Subsidiary Guarantor, (d) in the event such new Subsidiary is a Domestic Subsidiary and owns any Equity Interests of another Subsidiary
(or at such time as such new Subsidiary that is a Domestic Subsidiary acquires any Equity Interests of another Subsidiary), cause such new Subsidiary to (A) execute a joinder agreement to the
applicable Pledge Agreement, substantially in the form annexed thereto or, in the case of a Foreign Subsidiary, execute a pledge agreement compatible with the laws of such Foreign Subsidiary's
jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) take all actions necessary or advisable in the opinion of the Administrative Agent or the
Collateral Agent to cause the Lien created by the applicable Pledge Agreement to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law,
including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent, in each case, subject to the limitations set
forth in clause (a) with respect to Foreign Subsidiaries and (e) deliver or cause to be delivered to the Administrative Agent and the Collateral Agent opinions of counsel in form and
substance reasonably satisfactory to the Administrative Agent and the Collateral Agent as the Administrative Agent and the Collateral Agent shall request regarding the validity, perfection and
priority of the Liens on Collateral pursuant to this sentence; provided that Sections 5.11(c) and  (d) shall
not apply to any new Subsidiary that is an SPE, so long as any such new SPE shall not guarantee any other Indebtedness of the Company or its
Subsidiaries. 


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        SECTION 5.12    Security Interests; Further Assurances.    Promptly,
upon the reasonable request of the Administrative Agent, the Collateral Agent or any Lender, at Borrower's expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any document or instrument supplemental to or confirmatory of
the Security Documents or otherwise deemed by the Administrative Agent or the Collateral Agent reasonably necessary or desirable for the continued validity, perfection and priority of the Liens on the
Collateral covered thereby subject to no Liens, or obtain any consents or waivers as may be necessary or appropriate in connection therewith. Deliver or cause to be delivered to the Administrative
Agent and the Collateral Agent from time to time such other documentation, consents, authorizations, approvals and orders in
form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent as the Administrative Agent and the Collateral Agent shall reasonably deem necessary to perfect or
maintain the Liens on the Collateral pursuant to the Security Documents. Upon the exercise by the Administrative Agent, the Collateral Agent or any Lender of any power, right, privilege or remedy
pursuant to any Loan Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority execute and deliver all applications, certifications,
instruments and other documents and papers that the Administrative Agent, the Collateral Agent or such Lender may reasonably require. 


        SECTION 5.13    Information Regarding Collateral.    Except as
described on Schedule 5.13, not effect any change (i) in any Loan Party's legal name, (ii) in the location of any Loan Party's
chief executive office, (iii) in any Loan Party's identity or organizational structure, (iv) in any Loan Party's Federal Taxpayer Identification Number or organizational identification
number, if any, or (v) in any Loan Party's jurisdiction of organization (in each case, including by merging with or into any other entity, reorganizing, dissolving, liquidating, reorganizing or
organizing in any other jurisdiction), until (A) it shall have given the Collateral Agent and the Administrative Agent not less than 30 days' prior written notice (in the form of an
Officers' Certificate), or such lesser notice period agreed to by the Collateral Agent, of its intention so to do, clearly describing such change and providing such other information in connection
therewith as the Collateral Agent or the Administrative Agent may reasonably request and (B) it shall have taken all action reasonably satisfactory to the Collateral Agent to maintain the
perfection and priority of the security interest of the Collateral Agent for the benefit of the Secured Parties in the Collateral, if applicable. Each Loan Party agrees to promptly provide the
Collateral Agent with certified Organizational Documents reflecting any of the changes described in the preceding sentence. 


        SECTION 5.14    Redemption of Outstanding Debt.    Give irrevocable
notice of redemption or prepayment, as the case may be, to the holders of the Indebtedness set forth on Schedule B within three Business Days of
the Initial Funding Date. The amount required to redeem such Indebtedness shall be deposited into escrow as described in Section 4.01(p). 


ARTICLE VI  


 NEGATIVE COVENANTS  


        Each Loan Party warrants, covenants and agrees with each Lender that, so long as this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan Document have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts 


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drawn
thereunder have been reimbursed in full, unless the Required Lenders shall otherwise consent in writing, no Loan Party will, nor will they cause or permit any Subsidiaries to: 


        SECTION 6.01    Indebtedness.    Incur, create, assume or permit to
exist, directly or indirectly, any Indebtedness, except 



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


        (b)   (i) Indebtedness
outstanding on the Closing Date and listed on Schedule 6.01(b), (ii) the Senior
Subordinated Notes and Senior Subordinated Note Guarantees (including any notes and guarantees issued in exchange therefor in accordance with the registration rights document entered into in
connection with the issuance of the Senior Subordinated Notes and Senior Subordinated Note Guarantees) and (iii) refinancings or renewals thereof;  provided that (A) any such refinancing
Indebtedness is in an aggregate principal amount not greater than the aggregate principal amount of the
Indebtedness being renewed or refinanced, plus the amount of any premiums required to be paid thereon and reasonable fees and expenses associated
therewith, (B) such refinancing Indebtedness has a later or equal final maturity and longer or equal weighted average life than the Indebtedness being renewed or refinanced and (C) if
such Indebtedness being renewed or refinanced is subordinated Indebtedness, the refinancing Indebtedness shall be at least as subordinate as the Indebtedness being refinanced; 


        (c)   Indebtedness
under Hedging Obligations that are designed to protect against fluctuations in interest rates, foreign currency exchange rates or commodity prices, in each
case not entered into for speculative purposes; provided that if such Hedging Obligations relate to interest rates, (a) such Hedging Obligations
relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (b) the notional principal amount of such Hedging Obligations at the time incurred
does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate; 


        (d)   Indebtedness
permitted by Section 6.04(f); 


        (e)   Indebtedness
in respect of Purchase Money Obligations and Capital Lease Obligations, and refinancings or renewals thereof; 



        (f)    Indebtedness
incurred by Foreign Subsidiaries and/or Non-Guarantor Subsidiaries in an aggregate amount not to exceed $50.0 million at any time
outstanding; 


        (g)   Indebtedness
in respect of bid, performance or surety bonds, appeal bonds or replevin bonds issued for the account of any Company in the ordinary course of business,
including guarantees or obligations of any Company with respect to letters of credit supporting such bid, performance or surety obligations (in each case other than for an obligation for money
borrowed); 


        (h)   Contingent
Obligations of any Loan Party in respect of Indebtedness otherwise permitted under this Section 6.01; 


        (i)    Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that
such Indebtedness is extinguished within five Business Days of incurrence; 


        (j)    Indebtedness
arising in connection with endorsement of instruments for deposit in the ordinary course of business; 


        (k)   unsecured
subordinated Indebtedness of any Company, subordinated to the Loans on terms and conditions reasonably satisfactory to the Administrative Agent; 



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        (l)    Indebtedness
of any person assumed in connection with the acquisition of such person permitted under Section 6.07
if such person becomes a Loan Party after the date hereof and extensions, renewals or replacements of any such Indebtedness that do not increase the principal amount thereof;  provided, that such
Indebtedness exists at the time such person becomes a Loan Party and was not created in
connection with or in anticipation of such acquisition; provided, further, that such Indebtedness in the
aggregate does not exceed $25.0 million; 


        (m)  Indebtedness
consisting of customary purchase price adjustments, earn-outs, indemnification obligations and similar items of the Loan Parties in connection
with Permitted Acquisitions and permitted Asset Sales; 


        (n)   Indebtedness
pursuant to the Receivables Purchase Agreement facility or pursuant to a receivables purchase agreement in connection with a future SPE;  provided that the aggregate principal amount shall not exceed
$600 million outstanding at any time in the case of the Receivables Purchase
Agreement facility or an aggregate of $150.0 million outstanding at any time in the case of all future SPEs; 


        (o)   other
Indebtedness of any Company in an aggregate principal amount not to exceed $75.0 million; 


        (p)   Indebtedness
in respect of judgments or awards (i) which have been in force for less than the applicable appeal period and for which such reserves or other
appropriate provisions, if any, as shall be required in conformity with GAAP shall have been made or (ii) are being contested in good faith by appropriate proceedings timely instituted and
diligently conducted by the applicable Company; 


        (q)   Indebtedness
under the Dividend Note; and 


        (r)   $15.0 million
(or the Canadian equivalent) of Indebtedness under letters of credit issued to support Borrower's or its Subsidiaries' Canadian operations. 




        SECTION 6.02    Liens.    Create, incur, assume or permit to exist,
directly or indirectly, any Lien on any property now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except the following (collectively, the
"Permitted Liens"): 



        (a)   inchoate
Liens for taxes, assessments or governmental charges or levies not yet due and payable or delinquent and Liens for taxes, assessments or governmental charges or
levies, which are being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings (or orders entered in connection
with such proceedings) have the effect of preventing the forfeiture or sale of the property subject to any such Lien; 



        (b)   Liens
in respect of property of any Company imposed by law, which were incurred in the ordinary course of business and do not secure Indebtedness for borrowed money,
such as carriers', warehousemen's, materialmen's, landlords', workmen's, suppliers', repairmen's and mechanics' Liens and other similar Liens arising in the ordinary course of business, and
(i) which do not in the aggregate materially detract from the value of the property of the Companies, taken as a whole, and do not materially impair the use thereof in the operation of the
business of the Companies, taken as a whole and (ii) which, if they secure obligations that are then due and unpaid, are being contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with GAAP, which proceedings (or orders entered in connection with such proceedings) have the effect of preventing the forfeiture or sale of the
property subject to any such Lien; 


        (c)   any
Lien in existence on the Closing Date and set forth on Schedule 6.02(c) and any Lien granted as a replacement
or substitute therefor; provided that any such replacement or substitute 



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Lien
(i) except as permitted by Section 6.01(b)(ii)(A), does not secure an aggregate amount of Indebtedness, if any, greater than that
secured on the Closing Date and (ii) does not encumber any property other than the property subject thereto on the Closing Date (any such Lien, an "Existing
Lien"); 


        (d)   easements,
rights-of-way, restrictions (including zoning restrictions), covenants, licenses, encroachments, protrusions and other similar charges
or encumbrances, and minor title deficiencies on or with respect to any Real Property, in each case whether now or hereafter in existence, not (i) securing Indebtedness,
(ii) individually or in the aggregate materially impairing the value of such Real Property or (iii) individually or in the aggregate materially interfering with the ordinary conduct of
the business of the Companies at such Real Property; 


        (e)   Liens
arising out of judgments, attachments or awards not resulting in a Default and in respect of which such Company shall in good faith be prosecuting an appeal or
proceedings for review in respect of which adequate reserves are being maintained in accordance with GAAP; 


        (f)    Liens
(other than any Lien imposed by ERISA) (x) imposed by law or deposits made in connection therewith in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social security legislation, (y) incurred in the ordinary course of business to secure the performance of tenders, statutory
obligations (other than excise taxes), surety, stay, customs and appeal bonds, statutory bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money) or (z) arising by virtue of deposits made in the ordinary course of business or deposits made in connection
therewith to secure liability for premiums to insurance carriers; provided that (i) with respect to clauses (x), (y) and (z) of
this paragraph (f), such Liens are for amounts not yet due and payable or delinquent or, to the extent such amounts are so due and payable, such amounts are being contested in good faith by
appropriate proceedings for which adequate reserves have been established in accordance with GAAP, which proceedings for orders entered in connection with such
proceedings have the effect of preventing the forfeiture or sale of the property subject to any such Lien and (ii) to the extent such Liens are not imposed by law, such Liens shall in no event
encumber any property other than cash and Cash Equivalents; 


        (g)   Leases
or subleases of the properties of any Company, in each case entered into in the ordinary course of such Company's business so long as such Leases or subleases do
not, individually or in the aggregate, (i) interfere in any material respect with the ordinary conduct of the business of any Company or (ii) materially impair the use (for its intended
purposes) or the value of the property subject thereto; 


        (h)   Liens
arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Company in the ordinary course of
business in accordance with the past practices of such Company; 


        (i)    Liens
securing Indebtedness incurred pursuant to Section 6.01(e);  provided that any such Liens attach only to the property being financed pursuant to such
Indebtedness and do not encumber any other property of any
Company; 


        (j)    bankers'
Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by any
Company (including any restriction on the use of such cash and Cash Equivalents), in each case granted in the ordinary course of business in favor of the bank or banks with which such accounts are
maintained, securing amounts owing to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements;  provided that,




68







 




unless
such Liens are non-consensual and arise by operation of law, in no case shall any such Liens secure (either directly or indirectly) the repayment of any Indebtedness; 


        (k)   Liens
on property existing on any property or asset prior to the acquisition thereof by any Company or on any property of a person existing at the time such person is
acquired or merged with or into or consolidated with any Company to the extent permitted hereunder (and not created in anticipation or contemplation thereof);  provided that such Liens do not extend to
property not subject to such Liens at the time of acquisition (other than improvements thereon) and are no
more favorable to the lienholders than such existing Lien; 


        (l)    Liens
granted pursuant to the Security Documents to secure the Obligations; 


        (m)  licenses
of Intellectual Property granted by any Company in the ordinary course of business and not interfering in any material respect with the ordinary conduct of
business of the Companies; 


        (n)   interests
of lessors in leased property, including the filing of UCC financing statements solely as a precautionary measure in connection with operating leases or
consignment of goods; 


        (o)   Liens
securing Indebtedness incurred pursuant to Section 6.01(f);  provided that (i) such Liens do not extend to, or encumber, property which
constitutes Collateral and (ii) such Liens extend only to the
property (or Equity Interests) of the Foreign Subsidiary incurring such Indebtedness; 


        (p)   Liens
incurred in the ordinary course of business of any Company with respect to obligations that do not in the aggregate exceed $10.0 million at any time
outstanding; 


        (q)   Liens
incurred in the ordinary course of business in connection with the purchase or shipping of goods or assets on the related assets and proceeds thereof in favor of
the seller or shipper of such goods or assets; 


        (r)   Liens
on cash earnest money deposits in connection with Permitted Acquisitions in an aggregate amount not to exceed $5.0 million at any time outstanding; 


        (s)   Liens
on receivables and related assets sold to AFC Funding Corporation granted under the Receivables Purchase Agreement or the Purchase and Sale Agreement and documents
and transactions related thereto, including without limitation, the sale of receivables from Automotive Finance Corporation to AFC Funding Corporation pursuant to the Receivables Purchase Agreement,
or under a receivables purchase agreement in connection with a future SPE; and 


        (t)    Liens
in favor of the escrow agent, in connection with the escrow of funds required by Section 4.01(p); 




provided, however, that no consensual Liens shall be permitted to exist, directly or indirectly, on any
Collateral, other than Liens granted pursuant to the Security Documents. 



        SECTION 6.03    Sale and Leaseback Transactions.    Enter into any
arrangement, directly or indirectly, with any person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the property being sold or transferred (a "Sale and Leaseback Transaction")
unless (i) the sale of such property is permitted by Section 6.06 and (ii) any Liens arising in connection with its use of such
property are permitted by Section 6.02. 


        SECTION 6.04    Investment, Loan and Advances.    Directly or
indirectly, lend money or credit (by way of guarantee or otherwise) or make advances to any person, or purchase or acquire any stock, bonds, notes, debentures or other obligations or securities of, or
any other interest in, or make any 


69







 



capital
contribution to, any other person, or purchase or own a futures contract or otherwise become liable for the purchase or sale of currency or other commodities at a future date in the nature of
a futures contract (all of the foregoing, collectively, "Investments"), except that the following shall be permitted: 



        (a)   the
Companies may consummate the Transactions in accordance with the provisions of the Transaction Documents; 



        (b)   Investments
outstanding on the Closing Date and identified on Schedule 6.04(b); 


        (c)   the
Companies may (i) acquire and hold accounts receivables owing to any of them if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary terms, (ii) invest in, acquire and hold cash and Cash Equivalents, (iii) endorse negotiable instruments held for collection in the ordinary
course of business or (iv) make lease, utility and other deposits in the ordinary course of business; 


        (d)   Hedging
Obligations incurred pursuant to Section 6.01(c); 


        (e)   loans
and advances to directors, employees and officers of Borrower and the Subsidiaries for bona fide business purposes
and to purchase Equity Interests of Borrower, in aggregate amount not to exceed $10.0 million at any time outstanding; provided that no loans in
violation of Section 402 of the Sarbanes-Oxley Act shall be permitted hereunder; 



        (f)    Investments
(i) by Borrower in any Subsidiary Guarantor, (ii) by any Company in Borrower or any Subsidiary Guarantor, (iii) by a Subsidiary
Guarantor in another Subsidiary Guarantor and (iv) by a Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor; 


        (g)   Investments
in securities of trade creditors or customers in the ordinary course of business and consistent with such Company's past practices that are received in
settlement of bona fide disputes or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of
such trade creditors or customers; 


        (h)   Investments
made or received by Borrower or any Subsidiary as a result of consideration received in connection with an Asset Sale made in compliance with  Section 6.06; 


        (i)    other
Investments in an aggregate amount not to exceed $75.0 million at any time outstanding; 


        (j)    acquisitions
in compliance with Section 6.07;


        (k)   Contingent
Obligations permitted by Section 6.01;


        (l)    Contingent
Obligations in respect of customary indemnification and purchase price adjustment obligations of any Loan Party incurred in connection with Asset Sales
permitted by Section 6.06;


        (m)  Investments
constituting short-term inventory-secured financings made by Automotive Finance Corporation, Automotive Finance Canada, Inc or by future SPEs; 



        (n)   purchase
of receivables by AFC Funding Corporation from Automotive Finance Corporation pursuant to the Receivables Purchase Agreement or pursuant to a receivables
purchase agreement entered into by future SPEs; 


        (o)   letters
of credit issued to support customer obligations naming a Company as the beneficiary; 



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        (p)   intercompany
loans between Non-Subsidiary Guarantors and Borrower or a Subsidiary Guarantor in connection with Borrower's U.S. federal tax planning in the
ordinary course of business; 


        (q)   Investments
in new Foreign Subsidiaries owned by Domestic Subsidiaries in an amount not to exceed $25.0 million;  provided that the applicable Company complies with Section 5.11;



        (r)   purchases
of Senior Subordinated Notes in accordance with Section 6.11(a) in an aggregate amount not to exceed
$25.0 million; and 


        (s)   continuing
obligations of Borrower under the Amended and Restated Performance Guaranty, dated as of May 31, 2002, as amended, restated, replaced, supplemented or
otherwise modified to the date of this Agreement, by and among Borrower, Fairway Finance Corporation ("Fairway") and such other parties as may become party to the Receivables Purchase Agreement, BMO
Nesbitt Burns Corp., as agent for the purchasers and as a purchaser agent for Fairway, XL Capital Assurance, Inc. and each program support provider, and as further amended, restated, replaced,
supplemented or otherwise modified after the date of this Agreement in a manner not materially adverse to the Lenders. 




        SECTION 6.05    Mergers and Consolidations.    Wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation (or agree to do any of the foregoing at any future time), except that the following shall be permitted: 



        (a)   Asset
Sales in compliance with Section 6.06; 


        (b)   acquisitions
in compliance with Section 6.07; 


        (c)   any
Company may merge or consolidate with or into Borrower or any Subsidiary Guarantor (as long as Borrower or a Subsidiary Guarantor is the surviving person in such
merger or consolidation and such Subsidiary Guarantor remains a Wholly Owned Subsidiary of Borrower); provided that the Lien on and security interest in
such property granted or to be granted in favor of the Collateral Agent under the Security Documents shall be maintained or created in accordance with the provisions of  Section 5.11 or Section 5.12, as applicable; 


        (d)   any
Non-Guarantor Subsidiary may merge or consolidate with any Non-Guarantor Subsidiary; and 


        (e)   any
Subsidiary may dissolve, liquidate or wind up its affairs at any time; provided that such dissolution, liquidation or
winding up, as applicable, could not reasonably be expected to have a Material Adverse Effect. 




        SECTION 6.06    Asset Sales.    Effect any Asset Sale, or agree to
effect any Asset Sale, except that the following shall be permitted: 



        (a)   disposition
of used, worn out, obsolete or surplus property by any Loan Party in the ordinary course of business and the abandonment or other disposition of Intellectual
Property that is, in the reasonable judgment of Borrower, no longer economically practicable to maintain or useful in the conduct of the business of the Companies taken as a whole; 



        (b)   Asset
Sales for fair value; provided that the aggregate consideration received in respect of all Asset Sales pursuant to
this clause (b) shall not exceed $25.0 million in any four consecutive fiscal quarters of Borrower, but, in any event, shall not exceed $5.0 million with respect to any single
Asset Sale; 


        (c)   leases
or subleases of real or personal property in the ordinary course of business and in accordance with the applicable Security Documents; 



        (d)   mergers
and consolidations in compliance with Section 6.05; 



71













  



        (e)   Investments
in compliance with Section 6.04; 


        (f)    Asset
Sales as the result of any Casualty Event; 



        (g)   Asset
Sales from Borrower to any Subsidiary Guarantor, from any Subsidiary Guarantor to another Subsidiary Guarantor or from any Non-Guarantor Subsidiary to
another Non-Guarantor Subsidiary; 


        (h)   provided that no Default or Event of Default shall then exist and be continuing, sales of Canadian receivables;  provided that 100% of the Net Cash Proceeds will be
applied to make prepayments of Loans in accordance with  Section 2.10(e) and (f); and 



        (i)    the
sale of all of the Equity Interests or assets of [a Subsidiary to be identified] for consideration not to exceed $10.0 million. 




        SECTION 6.07    Acquisitions.    Purchase or otherwise acquire (in one
or a series of related transactions) any part of the property (whether tangible or intangible) of any person (or agree to do any of the foregoing at any future time), except that the following shall
be permitted: 



        (a)   Capital
Expenditures by Borrower and the Subsidiaries; 


        (b)   purchases
and other acquisitions, including licenses, of inventory, materials, equipment and intangible property in the ordinary course of business; 


        (c)   Investments
in compliance with Section 6.04; 


        (d)   leases
or subleases of real or personal property in the ordinary course of business and in accordance with the applicable Security Documents; 


        (e)   Permitted
Acquisitions; 


        (f)    mergers
and consolidations in compliance with Section 6.05; and 


        (g)   acquisition
of an ownership interest in two airplanes and real estate from ALLETE in conjunction with the Transactions on the terms set forth on  Schedule 6.07 hereto. 




provided that the Lien on and security interest in such property granted or to be granted in favor of the Collateral Agent under the Security Documents
shall be maintained or created in accordance with the provisions of Section 5.11 or  Section 5.12, as applicable. 


        SECTION 6.08    Dividends.    Authorize, declare or pay, directly or
indirectly, any Dividends with respect to any Company, except that the following shall be permitted: 



        (a)   Dividends
by any Company to Borrower or any Subsidiary Guarantor that is a Wholly Owned Subsidiary of Borrower (or, if such Subsidiary is not a Wholly Owned Subsidiary,
Dividends made to such Subsidiary on a pro rata basis to the other equityholders of such Subsidiary); 


        (b)   payments
to ALLETE under the Dividend Note; 


        (c)   provided that no Event of Default shall then exist and be continuing or would exist after giving effect thereto, cash
Dividends not to exceed $35.0 million per year; 


        (d)   provided that no Event of Default shall then exist and be continuing or would exist after giving effect thereto,
repurchases by Borrower of its capital stock for aggregate consideration not to exceed $130.0 million in the aggregate; 


        (e)   payments
to Borrower to permit Borrower, and the subsequent use of such payments by Borrower, to repurchase or redeem Qualified Capital Stock (or options therefor) of
Borrower held by officers, directors or employees or former officers, directors or employees (or their transferees, estates or beneficiaries under their estates) of any Company, upon their death,
disability, 



72







 




retirement,
severance or termination of employment or service or as otherwise required by any stock option plan; provided that the aggregate cash
consideration paid for all such redemptions and payments shall not exceed, in any fiscal year, the sum of (x) $5.0 million (and up to 50% of such $5.0 million not used in any
fiscal year may be carried forward to the next succeeding (but no other) fiscal year), plus (y) the amount of any Net Cash Proceeds received by
or contributed to Borrower from the issuance and sale since the issue date of Qualified Capital Stock of Borrower to officers, directors or employees of any Company that have not been used to make any
repurchases, redemptions or payments under this clause (e), plus(z) the net cash proceeds of any "key-man" life insurance
policies of any Company that have not been used to make any repurchases, redemptions or payments under this clause (e); and 


        (f)    Dividends
by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary. 




        SECTION 6.09    Transactions with Affiliates.    Enter into, directly
or indirectly, any transaction or series of related transactions, whether or not in the ordinary course of business, with any Affiliate of any Company (other than between or among Borrower and one or
more Subsidiary Guarantors or between any Non-Guarantor Subsidiary and another Non-Guarantor Subsidiary), other than on terms and conditions at least as favorable to such
Company as would reasonably be obtained by such Company at that time in a comparable arm's-length transaction with a person other than an Affiliate, except that the following shall be permitted: 



        (a)   Dividends
permitted by Section 6.08; 


        (b)   Investments
permitted by Sections 6.04(e) and (f); 


        (c)   reasonable
and customary director, officer and employee compensation (including bonuses) and other benefits (including retirement, health, stock option and other benefit
plans) and indemnification arrangements, in each case approved by the Board of Directors; 



        (d)   transactions
with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods and services, in each case in the ordinary course of business
and otherwise not prohibited by the Loan Documents; 


        (e)   transactions
expressly described in the agreements listed on Schedule 6.09; 


        (f)    sales
of Qualified Capital Stock to Affiliates of Borrower not otherwise prohibited by the Loan Documents and the granting of registration and other customary rights in
connection therewith; 


        (g)   any
transaction with an Affiliate where the only consideration paid by any Loan Party is Qualified Capital Stock; 


        (h)   the
Transactions as contemplated by the Transaction Documents; and 


        (i)    the
Dividend Note. 




        SECTION 6.10    Financial Covenants.    



        (a)    Maximum Total Leverage Ratio.    Permit the Total Leverage Ratio, on the last day of any Test Period, beginning
with the Test Period ending September 30, 2004, to exceed 3.25 to 1.0. 


        (b)    Minimum Interest Coverage Ratio.    Permit the Consolidated Interest Coverage Ratio, on the last day of any
Test Period, beginning with the Test Period ending September 30, 2004, to be less than 3.0 to 1.0. 



        (c)    Minimum Fixed Charge Coverage Ratio.    Permit the Consolidated Fixed Charge Coverage Ratio, on the last day of
any Test Period, beginning with the Test Period ending September 30, 2004, to be less than 1.0 to 1.0. 



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        SECTION 6.11    Prepayments of Other Indebtedness; Modifications of Organizational Documents and Other
Documents, etc.    Directly or indirectly: 



        (a)   make
(or give any notice in respect thereof) any voluntary or optional payment or prepayment on or redemption or acquisition for value of, or any prepayment or
redemption as a result of any asset sale, change of control or similar event of, any Indebtedness outstanding under the Senior Subordinated Notes or any other Subordinated Indebtedness, except
(i) in connection with a refinancing expressly permitted by Section 6.01(b) or
(ii) provided that no Event of Default shall then exist and be continuing, in connection with a repurchase of Senior Subordinated Notes by
Borrower in an aggregate principal amount not to exceed $25.0 million; 


        (b)   amend
or modify, or permit the amendment or modification of, any provision of any Transaction Document in any manner that is adverse in any material respect to the
interests of the Lenders; 


        (c)   terminate,
amend, modify (including electing to treat any Pledged Interests (as defined in the Pledge Agreements) as a "security" under Section 8-103
of the UCC) or change any of its Organizational Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its Equity
Interests (including any stockholders' agreement), or enter into any new agreement with respect to its Equity Interests, other than any such amendments, modifications or changes or such new agreements
which are not adverse in any material respect to the interests of the Lenders; provided that Borrower may issue such Equity Interests, so long as such
issuance is not prohibited by any provision of this Agreement, and may amend its Organizational Documents to authorize any such Equity Interests; or 



        (d)   cause
or permit any other obligation (other than the Obligations and the Guaranteed Obligations) to constitute Designated Senior Debt (as defined in the Senior
Subordinated Note Documents). 




        SECTION 6.12    Limitation on Certain Restrictions on
Subsidiaries.    Directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any
Subsidiary to (a) pay dividends or make any other distributions on its capital stock or any other interest or participation in its profits owned by Borrower or any Subsidiary, or pay any
Indebtedness owed to Borrower or a Subsidiary, (b) make loans or advances to Borrower or any Subsidiary or (c) transfer any of its properties to Borrower or any Subsidiary, except for
such encumbrances or restrictions existing under or by reason of (i) applicable law; (ii) this Agreement and the other Loan Documents; (iii) the Senior Subordinated Note Documents
as in effect on the Initial Funding Date; (iv) customary provisions restricting subletting or assignment of any lease governing a leasehold interest of a Subsidiary; (v) customary
provisions restricting assignment of any agreement entered into by a Subsidiary in the ordinary course of business; (vi) any holder of a Lien permitted by  Section 6.02 restricting the transfer
of the property subject thereto; (vii) customary restrictions and conditions contained in any
agreement relating to the sale of any property permitted under Section 6.06 pending the consummation of such sale; (viii) any
agreement in effect at the time such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a
Subsidiary of Borrower; (ix) in the case of any joint venture which is not a Loan Party in respect of any matters referred to in clauses (b) and (c) above, restrictions in such
person's Organizational Documents or pursuant to any joint venture agreement or stockholders agreements solely to the extent of the Equity Interests of or property held in the subject joint venture or
other entity; (x) restrictions included in the Receivables Purchase Agreement or (xi) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise
permitted by the Loan Documents of the contracts, instruments or obligations referred to in clauses (iii) or 


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(viii) above;
provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions
than those prior to such amendment or refinancing. 


        SECTION 6.13    Limitation on Creation of Subsidiaries.    Establish,
create or acquire any additional Subsidiaries without the prior written consent of the Required Lenders; provided that, without such consent, Borrower
may (i) establish or create one or more Wholly Owned Subsidiaries of Borrower, (ii) establish, create or acquire one or more Subsidiaries in connection with an Investment made pursuant
to Section 6.04(f) or 6.04(i) or (iii) acquire
one or more Subsidiaries in connection with a Permitted Acquisition, so long as, in each case, Section 5.11 shall be complied with. 


        SECTION 6.14    Business.    With respect to Borrower and the
Subsidiaries, engage (directly or indirectly) in any business other than those businesses in which Borrower and its Subsidiaries are engaged on the Closing Date as described in the Confidential
Information Memorandum (or, in the good faith judgment of the Board of Directors, which are reasonably related thereto or are reasonable extensions thereof). 



        SECTION 6.15    Limitation on Accounting Changes.    Make or permit
any change in accounting policies or reporting practices, without the consent of the Required Lenders, which consent shall not be unreasonably withheld, except changes that are required by GAAP. 


        SECTION 6.16    Fiscal Year.    Change its fiscal year-end
to a date other than December 31. 


        SECTION 6.17    No Further Negative Pledge.    Enter into any
agreement, instrument, deed or lease which prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of their respective properties or revenues,
whether now owned or hereafter acquired, or which requires the grant of any security for an obligation if security is granted for another obligation, except the following: (1) this Agreement
and the other Loan Documents; (2) covenants in documents creating Liens permitted by Section 6.02 prohibiting further Liens on the
properties encumbered thereby; (3) the Senior Subordinated Note Documents as in effect on the Initial Funding Date; (4) any other agreement that does not restrict in any manner (directly
or indirectly) Liens created pursuant to the Loan Documents on any Collateral securing the Obligations and does not require the direct or indirect granting of any Lien securing any Indebtedness or
other obligation by virtue of the granting of Liens on or pledge of property of any Loan Party to secure the Obligations; (5) the Receivables Purchase Agreement; and (6) any prohibition
or limitation that (a) exists pursuant to applicable law, (b) consists of customary restrictions and conditions contained in any agreement relating to the sale of any property permitted
under Section 6.06 pending the consummation of such sale, (c) restricts subletting or assignment of any lease governing a leasehold
interest of Borrower or a Subsidiary, (d) exists in any agreement in effect at the time such Subsidiary becomes a Subsidiary of Borrower, so long as such agreement was not entered into in
contemplation of such person becoming a Subsidiary or (e) is imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or
obligations referred to in clause (3) or (5)(e); provided that such amendments and refinancings are no more materially restrictive with respect
to such prohibitions and limitations than those prior to such amendment or refinancing. 


        SECTION 6.18    Anti-Terrorism Law; Anti-Money
Laundering.    (a) Directly or indirectly, (i) knowingly conduct any business or engage in making or receiving any contribution of funds, goods or services to
or for the benefit of any person described in Section 3.21, (ii) knowingly deal in, or otherwise engage in any transaction relating to,
any property or interests in property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, or (iii) knowingly engage in or conspire to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the Loan Parties shall deliver to
the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming the Loan Parties' compliance with this  Section 6.18). 


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        (b)   Cause
or permit any of the funds of such Loan Party that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the
Loans would be in violation of law. 


        SECTION 6.19    Embargoed Person.    Cause or permit (a) any of
the funds or properties of the Loan Parties that are used to repay the Loans to constitute property of, or be beneficially owned directly or
indirectly by, any person subject to sanctions or trade restrictions under United States law ("Embargoed Person" or "Embargoed
Persons") that is identified on (1) the "List of Specially Designated Nationals and Blocked Persons" (the "SDN List")
maintained by OFAC and/or on any other similar list ("Other List") maintained by OFAC pursuant to any authorizing statute including, but not limited to,
the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1  et seq., and any
Executive Order or regulation promulgated thereunder, with the result that the investment in the Loan Parties (whether directly or
indirectly) is prohibited by law, or the Loans made by the Lenders would be in violation of law, or (2) the Executive Order, any related enabling legislation or any other similar Executive
Orders (collectively, "Executive Orders"), or (b) any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the
Loan Parties, with the result that the investment in the Loan Parties (whether directly or indirectly) is prohibited by law or the Loans are in violation of law. 


ARTICLE VII  


 GUARANTEE  


        SECTION 7.01    The Guarantee.    The Subsidiary Guarantors hereby,
jointly and severally guarantee, as a primary obligor and not as a surety to each Secured Party and their respective successors and assigns, the prompt payment in full when due (whether at stated
maturity, by required prepayment, declaration, demand, by acceleration or otherwise) of the principal of and interest (including any interest, fees, costs or charges that would accrue but for the
provisions of the Title 11 of the United States Code after any bankruptcy or insolvency petition under Title 11 of the United States Code) on the Loans made by the Lenders to, and the Notes held by
each Lender of, Borrower, and all other Obligations from time to time owing to the Secured Parties by any Loan Party under any Loan Document in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "Guaranteed Obligations"). The Subsidiary Guarantors hereby jointly and severally agree that if
Borrower or other Subsidiary Guarantor(s) shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Subsidiary Guarantors
will promptly pay the same in cash, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be
promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal. 


        SECTION 7.02    Obligations Unconditional.    The obligations of the
Subsidiary Guarantors under Section 7.01 shall constitute a guaranty of payment and to the fullest extent permitted by applicable law, are
absolute, irrevocable and unconditional, joint and several, irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations of Borrower under this
Agreement, the Notes, if any, or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the
Guaranteed Obligations, and, irrespective of any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a surety or Subsidiary Guarantor (except for
payment in full). Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of 


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the
following shall not alter or impair the liability of the Subsidiary Guarantors hereunder which shall remain absolute, irrevocable and unconditional under any and all circumstances as described
above: 



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


         (ii)  any
of the acts mentioned in any of the provisions of this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein shall be
done or omitted; 


        (iii)  the
maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be amended in any respect, or any right under the
Loan Documents or any other agreement or instrument referred to herein or therein shall be amended or waived in any respect or any other guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or otherwise dealt with; 


        (iv)  any
Lien or security interest granted to, or in favor of, Issuing Bank or any Lender or Agent as security for any of the Guaranteed Obligations shall fail to be
perfected; or 


         (v)  the
release of any other Subsidiary Guarantor pursuant to Section 7.09. 




        The
Subsidiary Guarantors hereby expressly waive diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that any Secured Party exhaust any
right, power or remedy or proceed against Borrower under this Agreement or the Notes, if any, or any other agreement or instrument referred to herein or therein, or against any other person under any
other guarantee of, or security for, any of the Guaranteed Obligations. The Subsidiary Guarantors waive any and all notice of the creation, renewal, extension, waiver, termination or accrual of any of
the
Guaranteed Obligations and notice of or proof of reliance by any Secured Party upon this Guarantee or acceptance of this Guarantee, and the Guaranteed Obligations, and any of them, shall conclusively
be deemed to have been created, contracted or incurred in reliance upon this Guarantee, and all dealings between Borrower and the Secured Parties shall likewise be conclusively presumed to have been
had or consummated in reliance upon this Guarantee. This Guarantee shall be construed as a continuing, absolute, irrevocable and unconditional guarantee of payment without regard to any right of
offset with respect to the Guaranteed Obligations at any time or from time to time held by Secured Parties, and the obligations and liabilities of the Subsidiary Guarantors hereunder shall not be
conditioned or contingent upon the pursuit by the Secured Parties or any other person at any time of any right or remedy against Borrower or against any other person which may be or become liable in
respect of all or any part of the Guaranteed Obligations or against any collateral security or guarantee therefor or right of offset with respect thereto. This Guarantee shall remain in full force and
effect and be binding in accordance with and to the extent of its terms upon the Subsidiary Guarantors and the successors and assigns thereof, and shall inure to the benefit of the Lenders, and their
respective successors and assigns, notwithstanding that from time to time during the term of this Agreement there may be no Guaranteed Obligations outstanding. 


        SECTION 7.03    Reinstatement.    The obligations of the Subsidiary
Guarantors under this Article VII shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of
Borrower or other Loan Party in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise. 


        SECTION 7.04    Subrogation; Subordination.    Each Subsidiary
Guarantor hereby agrees that until the indefeasible payment and satisfaction in full in cash of all Guaranteed Obligations and the expiration and termination of the Commitments of the Lenders under
this Agreement it shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of its guarantee in  Section 7.01, whether by
subrogation or otherwise, against 


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Borrower
or any other Subsidiary Guarantor of any of the Guaranteed Obligations or any security for any of the Guaranteed Obligations. Any Indebtedness of any Loan Party permitted pursuant to  Section 6.01(d) shall be subordinated to such Loan Party's Obligations in the manner set forth in the Intercompany Note evidencing such
Indebtedness. 


        SECTION 7.05    Remedies.    The Subsidiary Guarantors jointly and
severally agree that, as between the Subsidiary Guarantors and the Lenders, the obligations of Borrower under this Agreement and the Notes, if any, may be declared to be forthwith due and payable as
provided in Article VIII (and shall be deemed to have become automatically due and payable in the circumstances provided in said  Article VIII)
for purposes of Section 7.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against Borrower and that, in the event of such declaration (or such obligations being
deemed to have become automatically due and payable), such obligations (whether or not due and payable by Borrower) shall forthwith become due and payable by the Subsidiary Guarantors for purposes of
Section 7.01. 


        SECTION 7.06    Instrument for the Payment of Money.    Each
Subsidiary Guarantor hereby acknowledges that the guarantee in this Article VII constitutes an instrument for the payment of money, and consents
and agrees that any Lender or Agent, at its sole option, in the event of a dispute by such Subsidiary Guarantor in the payment of any moneys due hereunder, shall have the right to bring a
motion-action under New York CPLR Section 3213. 


        SECTION 7.07    Continuing Guarantee.    The guarantee in this  Article VII is a
continuing guarantee of payment, and shall apply to all Guaranteed Obligations whenever arising. 


        SECTION 7.08    General Limitation on Guarantee Obligations.    In any
action or proceeding involving any state corporate limited partnership or limited liability company law, or any applicable state, federal or foreign bankruptcy, insolvency, reorganization or other law
affecting the rights of creditors generally, if the obligations of any Subsidiary Guarantor under Section 7.01 would otherwise be held or
determined to be void, voidable, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under  Section 7.01, then, notwithstanding
any other provision to the contrary, the amount of such liability shall, without any further action by such
Subsidiary Guarantor, any Loan Party or any other person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors
as determined in such action or proceeding. 


        SECTION 7.09    Release of Subsidiary Guarantors.    If, in compliance
with the terms and provisions of the Loan Documents, all or substantially all of the Equity Interests or property of any Subsidiary Guarantor are sold or otherwise transferred (a
"Transferred Guarantor") to a person or persons, none of which is Borrower or a Subsidiary, such Transferred Guarantor shall, upon the consummation of
such sale or transfer, be released from its obligations under this Agreement (including under Section 10.03 hereof) and its obligations to pledge
and grant any Collateral owned by it pursuant to any Security Document and, in the case of a sale of all or substantially all of the Equity Interests of the Transferred Guarantor, the pledge of such
Equity Interests to the Collateral Agent pursuant to the Pledge Agreements shall be released, and the Collateral Agent shall take such actions as are necessary to effect each release described in this  Section 7.09 in accordance with the relevant provisions of the Security Documents. 



        SECTION 7.10    No Proceedings.    Each of Borrower, the Lenders (in
their capacity under this Agreement), and the Agents (in their capacity under this Agreement) hereby covenants and agrees that it will not institute against, or join any other Person in instituting
against, AFC Funding Corporation, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one
year and one day after which no obligation shall be outstanding under the Receivables Purchase Agreement. Notwithstanding anything 


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in
this Agreement to the contrary, the parties to the Receivables Purchase Agreement are third party beneficiaries to this Section 7.10 and it
shall not be amended or waived without the consent of all such parties. 


ARTICLE VIII  


 EVENTS OF DEFAULT  


        SECTION 8.01    Events of Default.    Upon the occurrence and during
the continuance of the following events ("Events of Default"): 



        (a)   default
shall be made in the payment of any principal of any Loan or any Reimbursement Obligation when and as the same shall become due and payable, whether at the due
date thereof (including a Term Loan Repayment Date) or at a date fixed for prepayment (whether voluntary or mandatory) thereof or by acceleration thereof or otherwise; 



        (b)   default
shall be made in the payment of any interest on any Loan or any Fee or any other amount (other than an amount referred to in paragraph (a) above) due
under any Loan Document, when and as the same shall become due and payable, and such default shall continue unremedied for a period of three Business Days; 


        (c)   any
representation or warranty made or deemed made in or in connection with any Loan Document or the borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or information contained in any report, certificate, financial statement or other instrument furnished in connection with or pursuant to any Loan Document, shall
prove to have been false or misleading in any material respect when so made, deemed made or furnished; 


        (d)   default
shall be made in the due observance or performance by any Loan Party or Canadian Company of any covenant, condition or agreement contained in  Section 5.02, 5.03(a)
 or 5.08 or in  Article VI; 



        (e)   default
shall be made in the due observance or performance by any Loan Party or Canadian Company of any covenant, condition or agreement contained in any Loan Document
(other than those specified in paragraphs (a), (b) or (d) immediately above) and such default shall continue unremedied or shall not be waived for a period of 30 days after
written notice thereof from the Administrative Agent or any Lender to Borrower; 


        (f)    any
Loan Party or Canadian Company shall (i) fail to pay any principal or interest, regardless of amount, due in respect of any Indebtedness (other than the
Obligations), when and as the same shall become due and payable beyond any applicable grace period, or (ii) fail to observe or perform any other term, covenant, condition or agreement contained
in any agreement or instrument evidencing or governing any such Indebtedness if the effect of any failure referred to in this clause (ii) is to cause, or to permit the holder or holders of such
Indebtedness or a trustee or other representative on its or their behalf (after giving effect to any applicable grace period) to cause, such Indebtedness to become due prior to its stated maturity or
become subject to a mandatory offer purchase by the obligor; provided that it shall not constitute an Event of Default pursuant to this
paragraph (f) unless the aggregate amount of all such Indebtedness referred to in clauses (i) and (ii) exceeds $10.0 million at any one time; 



        (g)   an
involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of any
Loan Party or Canadian Company, or of a substantial part of the property of any Loan Party or Canadian Company, under Title 11 of the Code, as now constituted or hereafter amended, or any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law; (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for any Loan
Party or Canadian 



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Company
or for a substantial part of the property of any Loan Party or Canadian Company; or (iii) the winding-up or liquidation of any Loan Party or Canadian Company; and such
proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; 


        (h)   any
Loan Party or Canadian Company shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law; (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition described in clause (g) above; (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Loan Party or Canadian Company or for a substantial part of the property of any Loan Party or Canadian Company; (iv) file an
answer admitting the material allegations of a petition filed against it in any such proceeding;
(v) make a general assignment for the benefit of creditors; (vi) become unable, admit in writing its inability or fail generally to pay its debts as they become due; (vii) take
any action for the purpose of effecting any of the foregoing; or (viii) wind up or liquidate; 



        (i)    one
or more judgments, orders or decrees for the payment of money in an aggregate amount in excess of $10.0 million shall be rendered against any Loan Party or
Canadian Company or any combination thereof and the same shall remain undischarged, unvacated or un-bonded for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to levy upon properties of any Loan Party or Canadian Company to enforce any such judgment; 


        (j)    one
or more ERISA Events or terminations, withdrawals or events of noncompliance with applicable law or plan terms with respect to Foreign Plans shall have occurred that
when taken together with all other such ERISA Events and terminations, withdrawals and events of noncompliance with respect to Foreign Plans that have occurred, could reasonably be expected to result
in liability of any Company and its ERISA Affiliates in an aggregate amount exceeding $10.0 million or the imposition of a Lien on any properties of any Company; 


        (k)   any
security interest and Lien purported to be created by any Security Document shall cease to be in full force and effect, or shall cease to give the Collateral Agent,
for the benefit of the Secured Parties, the Liens, rights, powers and privileges purported to be created and granted under such Security Documents (including a perfected first priority security
interest in and Lien on, all of the Collateral thereunder (except as otherwise expressly provided in such Security Document)) in favor of the Collateral Agent, or shall be asserted by Borrower or any
other Loan Party not to be, a valid, perfected, first priority (except as otherwise expressly provided in this Agreement or such Security Document) security interest in or Lien on the Collateral
covered thereby; 


        (l)    any
Loan Document or any material provisions thereof shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, or a
proceeding shall be commenced by any Loan Party or any other person, or by any Governmental Authority, seeking to establish the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any Loan Party shall repudiate or deny any portion of its liability or obligation for the Obligations; 


        (m)  there
shall have occurred a Change in Control; or 


        (n)   there
shall have occurred the termination of, or the receipt by any Loan Party of notice of the termination of, or the occurrence of any event or condition which would,
after giving effect 



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to
any cure period thereunder, constitute an event of default under or permit the termination of, the Receivables Purchase Agreement; 




then,
and in every such event (other than an event with respect to Borrower described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to Borrower, take either or both of the following actions, at the same or different times: (i) terminate
forthwith the Commitments and (ii) declare the Loans and Reimbursement Obligations then outstanding to be forthwith due and payable in whole or in part, whereupon the principal of the Loans and
Reimbursement Obligations so declared to be due and payable, together with accrued interest thereon and any unpaid accrued Fees and all other liabilities of Borrower accrued hereunder and under any
other Loan Document, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by Borrower and the
Subsidiary Guarantors, anything contained herein or in any other Loan Document to the contrary notwithstanding; and in any event, with respect to Borrower described in paragraph (g) or
(h) above, the Commitments shall automatically terminate and the principal of the Loans and Reimbursement Obligations then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of Borrower accrued hereunder and under any other Loan Document, shall automatically become due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by Borrower and the Subsidiary Guarantors, anything contained herein or in any other Loan Document to the contrary notwithstanding. 


ARTICLE IX  


 THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT  


        SECTION 9.01    Appointment.    Each Lender hereby irrevocably
designates and appoints each of the Administrative Agent and the Collateral Agent as an agent of such Lender under this Agreement and the other Loan Documents. Each Lender irrevocably authorizes each
Agent, in such capacity, through its agents or employees, to take such actions on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this Agreement and the other Loan Documents, together with such actions and powers as are reasonably incidental thereto. 


        SECTION 9.02    Agent in Its Individual Capacity.    Each person
serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent, and such person and its
Affiliates may accept deposits from, lend money to and generally engage in any kind of business with Borrower or any Subsidiary or other Affiliate thereof as if it were not an Agent hereunder. 


        SECTION 9.03    Exculpatory Provisions.    No Agent shall have any
duties or obligations except those expressly set forth in the Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents that such Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section 10.02), and (c) except as expressly set forth in the Loan
Documents, no Agent shall have any duty to disclose or shall be liable for the failure to disclose, any information relating to Borrower or any of its Subsidiaries that is communicated to or obtained
by the bank serving as such Agent or any of its Affiliates in any capacity. No Agent shall be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02) or in the absence
of its own 


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gross
negligence or willful misconduct. No Agent shall be deemed to have knowledge of any Default unless and until written notice thereof is given to such Agent by Borrower or a Lender, and no Agent
shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of
any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions
set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document. 


        SECTION 9.04    Reliance by Agent.    Each Agent shall be entitled to
rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been
signed or sent by a proper person. Each Agent also may rely upon any statement made to it orally and believed by it to be made by a proper person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other advisors selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or advisors. 


        SECTION 9.05    Delegation of Duties.    Each Agent may perform any
and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their respective Affiliates. The exculpatory provisions of the preceding paragraphs
shall apply to any such sub-agent and to the Affiliates of each Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication
of the credit facilities provided for herein as well as activities as Agent. 


        SECTION 9.06    Successor Agent.    Each Agent may resign as such at
any time upon at least 30 days' prior notice to the Lenders, the Issuing Bank and Borrower. Upon any such resignation, the Required Lenders shall have the right, with, so long as no Default or
Event of Default shall have occurred and be continuing, the consent of Borrower, to appoint a successor Agent from among the Lenders. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing
Bank and without Borrower's consent, appoint a successor Agent, which successor shall be a commercial banking institution organized under the laws of the United States (or any State thereof) or a
United States branch or agency of a commercial banking institution, in each case, having combined capital and surplus of at least $250 million;  provided that if such retiring Agent is unable to
find a commercial banking institution which is willing to accept such appointment and which meets the
qualifications set forth above, the retiring Agent's resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Agent hereunder until
such time, if any, as the Required Lenders appoint a successor Agent. 


        Upon
the acceptance of its appointment as an Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by Borrower to a successor Agent shall be the same as those payable to its
predecessor unless otherwise agreed between Borrower and such successor. After an Agent's resignation hereunder, the provisions of this  Article IX and Section 10.03 shall continue in effect for the benefit of such retiring
Agent, its sub-agents and their respective Affiliates in respect of any actions taken or omitted to be taken by any of them while it was acting as Agent. 


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        SECTION 9.07    Non-Reliance on Agent and Other
Lenders.    Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon any Agent or any
other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder. 



        SECTION 9.08    Name Agents.    The parties hereto acknowledge that
the Documentation Agents and the Syndication Agent hold such titles in name only, and that such titles confer no additional rights or obligations relative to those conferred on any Lender hereunder. 


        SECTION 9.09    Indemnification.    The Lenders severally agree to
indemnify each Agent in its capacity as such (to the extent not reimbursed by Borrower or the Subsidiary Guarantors and without limiting the obligation of Borrower or the Subsidiary Guarantors to do
so), ratably according to their respective outstanding Loans and Commitments in effect on the date on which indemnification is sought under this  Section 9.09 (or, if indemnification is sought after
the date upon which all Commitments shall have terminated and the Loans and Reimbursement
Obligations shall have been paid in full, ratably in accordance with such outstanding Loans and Commitments as in effect immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans and
Reimbursement Obligations) be imposed on, incurred by or asserted against such Agent in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent's gross negligence or
willful misconduct. The agreements in this Section 9.09 shall survive the payment of the Loans and all other amounts payable hereunder. 


ARTICLE X  


 MISCELLANEOUS  


        SECTION 10.01    Notices.    Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows: 



        (a)   if
to any Loan Party, to Borrower at: 




ADESA, Inc.

13085 Hamilton Crossing Boulevard

Carmel, Indiana 46032

Attention: Curtis L. Phillips

Telecopy No.: (317) 815-9650; 





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        (b)   if
to the Administrative Agent or the Collateral Agent, to it at: 




UBS
AG, Stamford Branch

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: Will Saint

Telecopy No.: (203) 719-3092; 





        (c)   if
to a Lender, to it at its address (or telecopy number) set forth on the applicable Lender Addendum or in the Assignment and Assumption pursuant to which such Lender
shall have become a party hereto; and 


        (d)   if
to the Swingline Lender, to it at: 




UBS
Loan Finance LLC

677 Washington Boulevard

Stamford, Connecticut 06901

Attention: Will Saint

Telecopy No.: (203) 719-3092. 






All
notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or
overnight courier service or sent by telecopy or by certified or registered mail, in each case delivered, sent or mailed (properly addressed) to such party as provided in this  Section 10.01 or in
accordance with the latest unrevoked direction from such party given in accordance with this  Section 10.01, and failure to deliver courtesy copies of notices and other communications shall in no
event affect the validity or effectiveness
of such notices and other communications. 


        SECTION 10.02    Waivers; Amendment.    (a) No failure or delay by any
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The
rights and remedies of each Agent, the Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b) of this Section 10.02, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether any Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time. 


        (b)   Except
as provided in paragraphs (c) and (d) below, neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived,
amended, supplemented or modified except, in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered into by the Administrative Agent, the Collateral Agent (in the case of any Security Document) and the Loan Party or Loan
Parties that are parties thereto, in each case with the written consent of the Required Lenders; provided that no such agreement shall: 



          (i)  increase
the Commitment of any Lender without the written consent of such Lender; 



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         (ii)  reduce
the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any Fees payable hereunder, or change the currency of
payment of any Obligation, without the written consent of each Lender affected thereby; 


        (iii)  postpone
or extend the maturity of any Loan, or any scheduled date of payment of or the installment otherwise due on the principal amount of any Term Loan under  Section 2.09, or the required date of payment
of any Reimbursement Obligation, or any date for the payment of any interest or fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment or postpone the scheduled date of expiration of any Letter of
Credit beyond the Revolving Maturity Date, without the written consent of each Lender directly affected thereby; 


        (iv)  change
Section 2.14(b) or (c) in a manner that would alter the  pro rata sharing of payments or setoffs
required thereby, without the written consent of each Lender; 


         (v)  change
the percentage set forth in the definition of "Required Lenders" or any other provision of any Loan Document (including this  Section 10.02) specifying the number or percentage of Lenders (or
Lenders of any Class) required to waive, amend or modify any rights thereunder
or make any
determination or grant any consent thereunder, without the written consent of each Lender (or each Lender of such Class, as the case may be); 


        (vi)  release
any Subsidiary Guarantor from its Guarantee (except as expressly provided in Article VII), or limit its
liability in respect of such Guarantee, without the written consent of each Lender; 



       (vii)  release
all or a substantial portion of the Collateral from the Liens of the Security Documents or alter the relative priorities of the Obligations entitled to the
Liens of the Security Documents (except in connection with securing additional Obligations equally and ratably with the other Obligations and except in connection with a transaction permitted by  Section 6.05 or Section 6.06), in each case without the written consent of each Lender; 


      (viii)  change
any provisions of any Loan Document in a manner that by its terms adversely affects the rights in respect of payments due to Lenders holding Loans of any Class
differently than those holding Loans of any other Class, without the written consent of Lenders holding a majority in interest of the outstanding Loans and unused Commitments of each affected Class;
or 


        (ix)  without
the consent of the Required Lenders and Term Loan Lenders holding more than 50% of the principal amount of the outstanding Term Loans, reduce the amount of, or
extend the date of, any scheduled payment on the Term Loans required to be made under Section 2.09, change the order of application of
prepayments among Term Loans and Revolving Commitments under Section 2.10(e) or change the application of prepayments of Term Loans set forth in  Section 2.10(e)
 to the remaining scheduled amortization payments to be made thereon under  Section 2.09;
 




provided, further, that (1) no such agreement shall amend, modify or otherwise affect the rights
or duties of the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be and (2) any waiver, amendment or modification of this Agreement that by its terms affects the rights or duties under this Agreement of the Revolving Lenders (but not
the Tranche A Lenders and Tranche B Lenders), or the Tranche A Lenders (but not the Revolving Lenders and Tranche B Lenders) or the Tranche B Lenders (but not the Revolving Lenders and Tranche A
Lenders) may be effected by an agreement or agreements in writing entered into by Borrower and requisite percentage in interest of the affected Class of Lenders that would be required to consent
thereto under this Section 10.02 if such Class of Lenders were the only Class of Lenders hereunder at the time. Notwithstanding the foregoing,
any provision of this Agreement may be amended by an 


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agreement
in writing entered into by Borrower, the Required Lenders and the Administrative Agent (and, if their rights or obligations are affected thereby, the Issuing Bank and the Swingline Lender)
if (x) by the terms of such agreement the Commitment of each Lender not consenting to the amendment provided for therein shall terminate upon the effectiveness of such amendment and
(y) at the time such amendment becomes effective, each Lender not consenting thereto receives payment in full of the principal of, premium, if any, and interest accrued on each Loan made by it
and all other amounts owing to it or accrued for its account under this Agreement. 


        (c)   If,
in connection with any proposed change, waiver, discharge or termination of the provisions of this Agreement as contemplated by  Section 10.02(b) (other than clause (iii) of such Section), the
consent of the Supermajority Lenders is obtained but the consent of one or
more of such other Lenders whose consent is required is not obtained, then Borrower shall have the right to replace all, but not less than all, of such nonconsenting Lender or Lenders (so long as all
nonconsenting Lenders are so replaced) with one or more persons pursuant to Section 2.16 so long as at the time of such replacement each such new
Lender consents to the proposed change, waiver, discharge or termination; provided, however, that
Borrower shall not have the right to replace a Lender solely as a result of the exercise of such Lender's rights (and the withholding of any required consent by such Lender) pursuant to
clause (iii) of Section 10.02(b). 



        (d)   In
addition, notwithstanding the foregoing, this Agreement may be amended with the written consent of the Administrative Agent, Borrower and the Lenders providing the
relevant Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Tranche B Loans ("Refinanced Term Loans") with a
replacement "B" term loan tranche hereunder which shall constitute Tranche B Loans hereunder ("Replacement Term Loans");  provided that (a) the
aggregate principal amount of Replacement Term Loans shall not exceed the aggregate principal amount of Refinanced Term
Loans, (b) the Applicable Margin for Replacement Term Loans shall not be higher than the Applicable Margin for Refinanced Term Loans, (c) the weighted average life to maturity of
Replacement Term Loans shall not be shorter than the weighted average life to maturity of Refinanced Term Loans at the time of such refinancing and (d) all other terms applicable to Replacement
Term Loans shall be substantially identical to, or less favorable to the Lenders providing Replacement Term Loans than, those applicable to Refinanced Term Loans, except to the extent necessary to
provide for covenants and other terms applicable to any period after the Final Maturity Date in effect immediately prior to such refinancing. 


        (e)   Notwithstanding
anything in Section 10.02(b) to the contrary so long as no Event of Default would exist after
giving effect thereto, this Agreement and the other Loan Documents may be amended at any time and from time to time to increase the aggregate Revolving Commitments or to establish one or more Classes
of Term Loans and/or Revolving Commitments by an agreement in writing entered into by Borrower, the Administrative Agent, the Collateral Agent and each person (including any Lender) that shall agree
to provide such Commitment or make a Term Loan of any Class so established (and each such person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender
with the same effect as if it had originally been a Lender under this Agreement with the Commitment and/or Term Loans set forth in such agreement);  provided that the aggregate outstanding principal
amount of the Term Loans and the new Commitments of all Classes shall at no time, without the consent
of the Required Lenders, exceed $100.0 million. Any such agreement shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of each Class of Term Loans
or Commitments established thereby (including the amount and final maturity thereof (which shall not be earlier than the Revolving Maturity Date), any provisions relating to the amortization or
mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof) and to effect such other changes (including changes to the provisions of this  Section 10.02,
Section 2.14 and the definition of "Required Lenders") as Borrower and the Administrative Agent shall deem necessary or
advisable in connection with the 


86







 

establishment
of any such Class; provided that no such agreement shall (i) effect any change described in  Section 10.02(b)(i) through (ix) without the consent of each person required to consent to such
change under such clause (it being agreed, however, that any increase in the Revolving Commitment or establishment of any Class of Term Loans will not, of itself, be deemed to effect any of the
changes described in Section 10.02(b)(vi) - (viii)), (ii) amend Article V,
VI or VIII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits one or more
Classes, but not all Classes, of Loans or Borrowings without the prior written consent of Lenders holding a majority in interest of the Loans and Commitments of each Class not so benefited (it being
agreed that no provision requiring Borrower to prepay Term Loans of one or more Classes pursuant to Sections 2.10(c) through  (e) shall be deemed to violate
this clause) or (iii) change any other provision of this Agreement or any other Loan Document that creates rights
in favor of Lenders holding Loans or Commitments of any existing Class, other than as necessary or advisable in the judgment of the Administrative Agent to cause such provision to take into account,
or to make the benefits of such provision available to, Lenders holding Term Loans of such new Class or such new Commitments. The Loans, Commitments and Borrowings of any Class established pursuant to
this paragraph shall constitute Loans, Commitments and Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting
the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents. The Loan Parties shall take any actions reasonably required by the
Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after the establishment of
any such Class of Term Loans or any such new Commitments. 


        SECTION 10.03    Expenses; Indemnity.    (a) The Loan Parties agree,
jointly and severally, to pay, promptly upon demand: 



          (i)  all
reasonable costs and expenses incurred by the Arrangers, the Administrative Agent, the Collateral Agent, the Swingline Lender and the Issuing Bank, including the
reasonable fees, charges and disbursements of Advisors for the Arrangers, the Administrative Agent, the Collateral Agent, the Swingline Lender and the Issuing Bank, in connection with the syndication
of the Loans and Commitments, the preparation, execution and delivery of the Loan Documents, the administration of the Loans and Commitments, the perfection and maintenance of the Liens securing the
Collateral and any actual or proposed amendment, supplement or waiver of any of the Loan Documents (whether or not the transactions contemplated hereby or thereby shall be consummated); 


         (ii)  all
costs and expenses incurred by the Administrative Agent or the Collateral Agent, including the reasonable fees, charges and disbursements of Advisors for the
Administrative Agent and the Collateral Agent, in connection with any action, suit or other proceeding affecting the Collateral or any part thereof, in which action, suit or proceeding the
Administrative Agent or the Collateral Agent is made a party or participates or in which the right to use the Collateral or any part thereof is threatened, or in which it becomes necessary in the
judgment of the Administrative Agent or the Collateral Agent to defend or uphold the Liens granted by the Security Documents (including any action, suit or proceeding to establish or uphold the
compliance of the Collateral with any Requirements of Law); 


        (iii)  all
costs and expenses incurred by the Arrangers, the Administrative Agent, the Collateral Agent, the Swingline Lender, the Issuing Bank or any Lender, including the
reasonable fees, charges and disbursements of Advisors for the Arrangers, the Administrative Agent, the Collateral Agent, the Swingline Lender, the Issuing Bank or any Lender, incurred in connection
with the enforcement or protection of its rights under the Loan Documents, including its rights under this Section 10.03(a), or in connection
with the Loans made or Letters of Credit issued hereunder and 



87







 




the
collection of the Obligations, including all such costs and expenses incurred during any workout, restructuring or negotiations in respect of the Obligations; and 


        (iv)  all
documentary and similar taxes and charges in respect of the Loan Documents. 




For
purposes of this Section 10.03(a), "Advisors" shall mean legal counsel (including local
counsel), auditors, accountants, consultants, appraisers or other advisors; provided that (x) in the case of clause (i), the engagement of
any Advisors other than legal counsel (including local counsel) shall be subject to approval by Borrower (which approval shall not be unreasonably withheld) and (y) in the case of
clause (iii), the engagement of any Advisors other than one firm of legal counsel by any Lender shall be subject to approval by the Administrative Agent. 



        (b)   The
Loan Parties agree, jointly and severally, to indemnify the Agents, each Lender, the Issuing Bank and the Swingline Lender, each Affiliate of any of the foregoing
persons and each of their respective partners, controlling persons, directors, officers, trustees, employees and agents (each such person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, all reasonable out-of-pocket costs and any and all losses,
claims, damages, liabilities, penalties, judgments, suits and related expenses, including reasonable counsel fees, charges and disbursements, incurred by or asserted against any Indemnitee arising out
of, in any way connected with, or as a result of (i) the execution, delivery, performance, administration or enforcement of the Loan Documents, (ii) any actual or proposed use of the
proceeds of the Loans or issuance of Letters of Credit, (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether or not any Indemnitee is a party
thereto, or (iv) any actual or alleged presence or Release or threatened Release of Hazardous Materials, on, at, under or from any property owned, leased or operated by any Company at any time,
or any Environmental Claim related in any way to any Company; provided that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted solely from the gross
negligence or willful misconduct of such Indemnitee. 


        (c)   The
provisions of this Section 10.03 shall remain operative and in full force and effect regardless of the
expiration of the term of this Agreement, the consummation of the transactions contemplated hereby, the repayment of the Loans and Reimbursement Obligations, the release of all or any portion of the
Collateral, the expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Agents, the Issuing Bank or any Lender. All amounts due under this Section 10.03 shall be payable on
written demand therefor accompanied by reasonable documentation with respect to any reimbursement, indemnification or other amount requested. 


        (d)   To
the extent that Borrower fails to promptly pay any amount required to be paid by it to the Agents, the Issuing Bank or the Swingline Lender under paragraph (a)
or (b) of this Section 10.03, each Lender severally agrees to pay to the Agents, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or
asserted against any of the Agents, the Issuing Bank or the Swingline Lender in its capacity as such. For purposes hereof, a Lender's "pro rata share"
shall be determined based upon its share of the sum of the total Revolving Exposure, outstanding Term Loans and unused Commitments at the time. 


        SECTION 10.04    Successors and Assigns.    (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without 


88







 



the
prior written consent of the Administrative Agent, the Collateral Agent, the Issuing Lender, the Swingline Lender and each Lender (and any attempted assignment or transfer by Borrower without such
consent shall be null and void). Nothing in this Agreement, express or implied, shall be construed to confer upon any person (other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly contemplated hereby, the other Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement. 


        (b)   Any
Lender shall have the right to assign at any time to an Eligible Assignee all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that except in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, any assignment made in connection with the primary syndication of the Commitment and Loans by the Arrangers or an assignment of the entire remaining amount of the assigning
Lender's Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender 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) shall not be less than $5.0 million unless each of Borrower and the Administrative Agent otherwise consents, (i) 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, except that this clause (i) shall not be construed
to prohibit the assignment of a proportionate part of all the assigning Lender's rights and obligations in respect of one Class of Commitments or Loans, (ii) 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 (unless such fee is waived by the Administrative Agent),
and (iii) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section 10.04, from and after the effective date specified in each Assignment and Assumption the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement
(provided that any liability of Borrower to such assignee under Section 2.12, 2.13 or  2.15 shall be
limited to the amount, if any, that would have been payable thereunder by Borrower in the absence of such assignment, except to the extent
any such amounts are attributable to a Change in Law occurring after the date of such assignment), 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 2.12, 2.13, 2.15 and  10.03).



        (c)   The
Administrative Agent, acting for this purpose as an agent of Borrower, shall maintain at one of its offices 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 Commitment of, and principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be conclusive in the absence of manifest error, and Borrower, the
Administrative Agent, the Issuing Bank 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 Borrower, the Issuing Bank, the Collateral Agent, the Swingline Lender and any Lender (with respect
to its own interest only), at any reasonable time and from time to time upon reasonable prior notice. 



        (d)   Upon
its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee's completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) 


89







 



of
this Section 10.04 and any written consent to such assignment required by paragraph (b) of this  Section 10.04, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. 


        (e)   Any
Lender shall have the right at any time, without the consent of Borrower, the Administrative Agent, the Issuing Bank or the Swingline Lender, to sell participations
to one or more banks or other entities (a "Participant") in all or a portion of such Lender's rights and obligations under this Agreement (including all
or a portion of its Commitment and the Loans owing to it); provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) Borrower, the Administrative Agent, the Issuing
Bank 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 the Loan Documents and to approve any amendment, modification or waiver of
any provision of the Loan Documents; provided that such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in clause (i), (ii) or (iii) of the first proviso to  Section 10.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.12, 2.13 and 2.15 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this Section 10.04. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 10.07 as though it were a Lender; provided that
such Participant agrees in writing to be subject to Section 2.14(c) as though it were a Lender. Each Lender shall, acting for this purpose as an
agent of Borrower, maintain at one of its offices a register for the recordation of the names and addresses of its Participants, and the amount and terms of its participations;  provided that no Lender
shall be required to disclose or share the information contained in such register with Borrower or any other party, except as
required by applicable law. 


        (f)    A
Participant shall not be entitled to receive any greater payment under Section 2.12, 2.13 or  2.15 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 prior written consent of Borrower (which consent shall not be unreasonably withheld or delayed). A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.15 unless Borrower is notified of the participation sold to such Participant and
such Participant agrees, for the benefit of Borrower, to comply with Sections 2.15(e) and (f) as though
it were a Lender. 


        (g)   Any
Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 10.04 shall not apply to any such pledge or assignment
of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In the case of any Lender that is a fund that invests in bank loans, such Lender may, without the consent of Borrower or
the Administrative Agent, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender
under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities. 


        SECTION 10.05    Survival of Agreement.    All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan
Document 


90







 



shall
be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of
Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Agents, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The
provisions of Sections 2.12, 2.14, 2.15 and 10.03 and  Article IX shall survive and remain in full force
and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the payment of the Reimbursement Obligations, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof. 


        SECTION 10.06    Counterparts; Integration; Effectiveness.    This
Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute
a single contract. This Agreement, the other Loan Documents and the Fee Letter constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter hereof. This Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement. 


        SECTION 10.07    Severability.    Any provision of this Agreement held
to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction. 


        SECTION 10.08    Right of Setoff.    If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates are hereby authorized at any time and from time to time, 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 and other obligations at any time owing by such Lender or Affiliate to or for the credit or the account of Borrower
against any and all of the obligations of Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each Lender under this Section 10.08 are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have. 


        SECTION 10.09    Governing Law; Jurisdiction; Consent to Service of
Process.    (a) This Agreement shall be construed in accordance with and governed by the law of the State of New York, without regard to conflicts of law principles
that would require the application of the laws of another jurisdiction. 


        (b)   Each
Loan Party hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may 


91







 



be
heard and determined in such New York State or, to the extent permitted by law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any other Loan Document shall affect any right
that the Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other Loan Document against any Loan Party or its
properties in the courts of any jurisdiction. 


        (c)   Each
Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in  Section 10.09(b). Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court. 


        (d)   Each
party to this Agreement irrevocably consents to service of process in any action or proceeding arising out of or relating to any Loan Document, in the manner
provided for notices (other than telecopy) in Section 10.01. Nothing in this Agreement or any other Loan Document will affect the right of any
party to this Agreement to serve process in any other manner permitted by applicable law. 


        SECTION 10.10    Waiver of Jury Trial.    Each party hereto hereby
waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal proceeding directly or indirectly arising out of or relating to this Agreement, any
other Loan Document or the transactions contemplated hereby (whether based on contract, tort or any other theory). Each party hereto (a) certifies that no representative, agent or attorney of
any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (b) acknowledges that it and the
other parties hereto have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this  Section 10.10. 



        SECTION 10.11    Headings.    Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this
Agreement. 


        SECTION 10.12    Confidentiality.    Each of the Administrative Agent,
the Issuing Bank 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' and
affiliated Approved Fund's 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 pursuant to the terms hereof), (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 any other Loan Document or the enforcement of rights hereunder or thereunder,
(f) subject to an agreement containing provisions substantially the same as those of this Section 10.12, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (ii) any actual or prospective counterparty (or its advisors) to any
swap or derivative transaction relating to Borrower and its obligations or (iii) any rating agency for the purpose of obtaining a credit rating applicable to any Loan or Loan Party,
(g) with the consent of Borrower or (h) to the extent such Information (i) is publicly available at the time of disclosure or becomes publicly available other than as a result of
a breach of this Section 10.12 or (ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis from a source other than Borrower or any Subsidiary. For the purposes of this Section 10.12,
"Information" means all information received from Borrower or any 


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Subsidiary
relating to Borrower or any Subsidiary or its business that is clearly identified at the time of delivery as confidential, other than any such information that is available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by Borrower or any Subsidiary. Any person required to maintain the confidentiality of Information as
provided in this Section 10.12 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. 


        SECTION 10.13    Interest Rate Limitation.    Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law
(collectively, the "Charges"), shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section 10.13 shall be cumulated and the interest and Charges payable to such Lender in respect of
other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender. 


        SECTION 10.14    Lender Addendum.    Each Lender to become a party to
this Agreement on the date hereof shall do so by delivering to the Administrative Agent a Lender Addendum duly executed by such Lender, Borrower and the Administrative Agent. 


        SECTION 10.15    Obligations Absolute.    To the fullest extent
permitted by applicable law, all obligations of the Loan Parties hereunder shall be absolute and unconditional irrespective of: 



        (a)   any
bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any Loan Party; 


        (b)   any
lack of validity or enforceability of any Loan Document or any other agreement or instrument relating thereto against any Loan Party; 


        (c)   any
change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any
departure from any Loan Document or any other agreement or instrument relating thereto; 



        (d)   any
exchange, release or non-perfection of any other Collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for
all or any of the Obligations; 


        (e)   any
exercise or non-exercise, or any waiver of any right, remedy, power or privilege under or in respect hereof or any Loan Document; or 


        (f)    any
other circumstances which might otherwise constitute a defense available to, or a discharge of, the Loan Parties. 



[Signature
Pages Follow] 


93









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



	 	 	ADESA, INC.
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

[SUBSIDIARY GUARANTORS]
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

UBS SECURITIES LLC, as Joint Lead Arranger
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

MERRILL LYNCH & CO., as Joint Lead Arranger
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

MERRILL LYNCH & CO., as Syndication Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

BANK ONE, N.A., as Co-Documentation Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

GENERAL ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	 	 	 	 





S-1







 

	

 	
 	

KEYBANK NATIONAL ASSOCIATION, as Co-Documentation Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

SUNTRUST BANK, as Co-Documentation Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

U.S. BANK NATIONAL ASSOCIATION, as Co-Documentation Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

UBS AG, STAMFORD BRANCH, as Issuing Bank, Administrative Agent and Collateral Agent
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

UBS LOAN FINANCE LLC, as Swingline Lender
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:
	

 	
 	

By:	

 
	 	 	 	
 Name:

Title:




S-2








Annex I  


Applicable Margin  



	 
	 	Revolving Loans and

Tranche A Loans
	 	 
	 	 
	 
	 
	 	Tranche B Loans
	 
	Total

Leverage Ratio
 
	 
	 	Eurodollar
	 	ABR
	 	Eurodollar
	 	ABR
	 
	Level I

31.8:1.0	 	2.25	%	1.25	%	2.50	%	1.50	%
	Level II

<1.8:1.0 but 31.5:1.0	 	2.00	%	1.00	%	2.25	%	1.25	%
	Level III

<1.5:1.0 but 31.25:1.0	 	1.75	%	0.75	%	2.00	%	1.00	%
	Level IV

<1.25:1.0	 	1.50	%	0.50	%	1.75	%	0.75	%






	
 Leverage

Ratio
 
	
 	

Applicable

Fee
	
 
	>1.75:1.0	 	0.50	%
	31.75:1.0	 	0.375	%






        Each
change in the Applicable Margin or Applicable Fee resulting from a change in the Total Leverage Ratio shall be effective with respect to all Loans and Letters of Credit outstanding
on and after the date of delivery to the Administrative Agent of the financial statements and certificates required by Section 5.01(a) or  (b) and
Section 5.01(c), respectively, indicating such change until the date immediately
preceding the next date of delivery of such financial statements and certificates indicating another such change. Notwithstanding the foregoing, the Leverage Ratio shall be deemed to be in Level I
(i) from the Closing Date to the date of delivery to the Administrative Agent of the financial statements and certificates required by  Section 5.01(a) or (b)
 and Section 5.01(c)
for the fiscal period ended at least six months after the Closing Date, (ii) at any time during which Borrower has failed to deliver the financial statements and certificates required by  Section 5.01(a)
 or (b) and  Section 5.01(c), respectively, and (iii) at any time during the existence of an Event of Default. 










Annex II  


Amortization Table  



	Date
 
	 	Tranche A Loan

Amount
	 	Tranche B Loan

Amount

	September 30, 2004	 	$	8,750,000	 	$	500,000
	December 31, 2004	 	$	8,750,000	 	$	500,000
	March 31, 2005	 	$	8,750,000	 	$	500,000
	June 30, 2005	 	$	8,750,000	 	$	500,000
	September 30, 2005	 	$	8,750,000	 	$	500,000
	December 31, 2005	 	$	8,750,000	 	$	500,000
	March 31, 2006	 	$	8,750,000	 	$	500,000
	June 30, 2006	 	$	8,750,000	 	$	500,000
	September 30, 2006	 	$	8,750,000	 	$	500,000
	December 31, 2006	 	$	8,750,000	 	$	500,000
	March 31, 2007	 	$	8,750,000	 	$	500,000
	June 30, 2007	 	$	8,750,000	 	$	500,000
	September 30, 2007	 	$	8,750,000	 	$	500,000
	December 31, 2007	 	$	8,750,000	 	$	500,000
	March 31, 2008	 	$	8,750,000	 	$	500,000
	June 30, 2008	 	$	8,750,000	 	$	500,000
	September 30, 2008	 	$	8,750,000	 	$	500,000
	December 31, 2008	 	$	8,750,000	 	$	500,000
	March 31, 2009	 	$	8,750,000	 	$	500,000
	[five year anniversary of closing date], 2009	 	$	8,750,000	 	 	—
	June 30, 2009	 	 	—	 	$	500,000
	September 30, 2009	 	 	—	 	$	47,500,000
	December 31, 2009	 	 	—	 	$	47,500,000
	March 31, 2010	 	 	—	 	$	47,500,000
	[six year anniversary of closing date], 2010	 	 	—	 	$	47,500,000














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