exv10w1



 





Exhibit 10.01




Execution Copy



 








CREDIT AGREEMENT




dated as of




June 1, 2007




among




TECHTEAM GLOBAL, INC.




The Lenders Party Hereto




and




JPMORGAN CHASE BANK, N.A.

as Administrative Agent




 






J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger



 










 



 




  1




TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I

	 
	 	 	 	 
	Definitions

	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	14	 
	SECTION 1.03. Terms Generally
	 	 	14	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	14	 
	 
	 	 	 	 
	ARTICLE II

	 
	 	 	 	 
	The Credits

	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	14	 
	SECTION 2.02. Loans and Borrowings
	 	 	15	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	15	 
	SECTION 2.04. Swingline Loans
	 	 	16	 
	SECTION 2.05. Letters of Credit
	 	 	17	 
	SECTION 2.06. Funding of Borrowings
	 	 	20	 
	SECTION 2.07. Interest Elections
	 	 	20	 
	SECTION 2.08. Termination and Reduction of Commitments
	 	 	21	 
	SECTION 2.09. Repayment of Loans; Evidence of Debt
	 	 	22	 
	SECTION 2.10. Prepayment of Loans
	 	 	22	 
	SECTION 2.11. Fees
	 	 	23	 
	SECTION 2.12. Interest
	 	 	24	 
	SECTION 2.13. Alternate Rate of Interest
	 	 	24	 
	SECTION 2.14. Increased Costs
	 	 	25	 
	SECTION 2.15. Break Funding Payments
	 	 	26	 
	SECTION 2.16. Taxes
	 	 	26	 
	SECTION
2.17. Payments Generally; Allocation of Proceeds; Sharing of
 Set-offs
	 	 	27	 
	SECTION 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	29	 
	SECTION 2.19. Departing Lenders; Replacement of Lenders
	 	 	29	 
	 
	 	 	 	 
	ARTICLE III

	 
	 	 	 	 
	Representations and Warranties

	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	30	 
	SECTION 3.02. Authorization; Enforceability
	 	 	30	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	31	 
	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	31	 
	SECTION 3.05. Properties
	 	 	31	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	31	 
	SECTION 3.07. Compliance with Laws and Agreements
	 	 	32	 
	SECTION 3.08. Investment Company Status
	 	 	32	 












 





2



	 	 	 	 	 
	 	 	Page	 
	SECTION 3.09. Taxes
	 	 	32	 
	SECTION 3.10. ERISA
	 	 	32	 
	SECTION 3.11. Disclosure
	 	 	32	 
	SECTION 3.12. Solvency
	 	 	32	 
	SECTION 3.13. Security Interest in Collateral
	 	 	33	 
	SECTION 3.14. Labor Disputes
	 	 	33	 
	SECTION 3.15. No Default
	 	 	33	 
	SECTION 3.16. Federal Reserve Regulations
	 	 	33	 
	SECTION 3.17. NewVectors Acquisition
	 	 	33	 
	SECTION 3.18. Common Enterprise
	 	 	33	 
	 
	 	 	 	 
	ARTICLE IV

	 
	 	 	 	 
	Conditions

	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	34	 
	SECTION 4.02. Each Credit Event
	 	 	36	 
	 
	 	 	 	 
	ARTICLE V

	 
	 	 	 	 
	Affirmative Covenants

	 
	 	 	 	 
	SECTION 5.01. Financial Statements; Ratings Change and Other Information
	 	 	37	 
	SECTION 5.02. Notices of Material Events
	 	 	38	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	38	 
	SECTION 5.04. Payment of Obligations
	 	 	38	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	38	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	39	 
	SECTION 5.07. Compliance with Laws
	 	 	39	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	39	 
	SECTION 5.09. Collateral Security; Further Assurances
	 	 	39	 
	SECTION 5.10. Additional Covenants
	 	 	40	 
	 
	 	 	 	 
	ARTICLE VI

	 
	 	 	 	 
	Negative Covenants

	SECTION 6.01. Indebtedness
	 	 	41	 
	SECTION 6.02. Liens
	 	 	42	 
	SECTION 6.03. Fundamental Changes
	 	 	42	 
	SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	43	 
	SECTION 6.05. Swap Agreements
	 	 	43	 
	SECTION 6.06. Restricted Payments
	 	 	43	 
	SECTION 6.07. Transactions with Affiliates
	 	 	43	 
	SECTION 6.08. Restrictive Agreements
	 	 	44	 
	SECTION 6.09. Financial Covenants
	 	 	44	 
	SECTION 6.10. Government Regulation
	 	 	44	 












 



3


	 	 	 	 	 
	 	 	Page	 
	ARTICLE VII

	 
	 	 	 	 
	Events of Default
	 	 	44	 
	 
	 	 	 	 
	ARTICLE VIII

	 
	 	 	 	 
	The Administrative Agent
	 	 	46	 
	 
	 	 	 	 
	ARTICLE IX

	 
	 	 	 	 
	Miscellaneous

	SECTION 9.01. Notices
	 	 	50	 
	SECTION 9.02. Waivers; Amendments
	 	 	50	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	51	 
	SECTION 9.04. Successors and Assigns
	 	 	52	 
	SECTION 9.05. Survival
	 	 	55	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	55	 
	SECTION 9.07. Severability
	 	 	56	 
	SECTION 9.08. Right of Setoff
	 	 	56	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	56	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	56	 
	SECTION 9.11. Headings
	 	 	57	 
	SECTION 9.12. Confidentiality
	 	 	57	 
	SECTION 9.13. Several Obligations; Nonreliance; Violation of Law
	 	 	58	 
	SECTION 9.14. USA PATRIOT Act
	 	 	58	 
	SECTION 9.15. Interest Rate Limitation
	 	 	58	 
	SECTION 9.16. Disclosure
	 	 	59	 
	SECTION 9.17. Appointment for Perfection
	 	 	59	 






Schedule 2.01 — Commitments

Schedule 3.06 — Disclosed Matters

Schedule 6.01 — Existing Indebtedness

Schedule 6.02 — Existing Liens

Schedule 6.08 — Existing Restrictions




EXHIBITS:




Exhibit A — Form of Assignment and Assumption










 



 


          CREDIT AGREEMENT dated as of June 1, 2007, among TECHTEAM GLOBAL, INC., the LENDERS party
hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent.



          The parties hereto agree as follows:



ARTICLE I




Definitions




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



          “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



          “Acquisition” means any transaction, or any series of related transactions, closed on
or after the date of this Agreement, by which the Borrower or any of the Subsidiaries (i) acquires
any going business or all or substantially all of the assets of any firm, corporation or limited
liability company, or division thereof, whether through purchase of assets, merger or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a
series of transactions) at least a majority (in number of votes) of the Equity Interests of a
Person.



          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



          “Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as
administrative agent for the Lenders hereunder.



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



          “Affiliate” means, 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.



          “Aggregate Commitment” means the aggregate Commitments of all Lenders, as modified
from time to time pursuant to the terms hereof. As of the Effective Date, the Aggregate Commitment
is $40,000,000.



          “Aggregate Revolving Credit Exposure” means, at any time, the aggregate of the
Revolving Credit Exposure of all the Lenders.



          “Agreed Currencies” means Dollars and any Eligible Currencies.



          “Alternate Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the









 



2



Prime Rate in effect on such day, and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.



          “Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.



          “Applicable Rate” means, for any day, with respect to any Eurocurrency Loan or ABR
Loan or with respect to the commitment fees or fees on Letters of Credit payable hereunder, as the
case may be, the applicable rate per annum set forth below under the caption “Eurocurrency Spread”,
“ABR Spread”, “Commitment Fee Rate” or “Letter of Credit Fee”, as the case may be, based upon the
Leverage Ratio as of the most recent determination date:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	Eurocurrency Spread	 	 	 	 
	 	 	 	 	and Letter of	 	 	 	 
	Level	 
	Leverage Ratio	 	Credit Fee	 	ABR Spread	 	Commitment Fee Rate
	I
	 	< 2.5:1.0	 	0.75%	 	0.0%	 	0.10%
	II
	 	≥ 2.5:1.0 and < 3.0:1.0	 	1.00%	 	0.0%	 	0.15%
	III
	 	≥ 3.0:1.0 and < 3.5:1.0	 	1.25%	 	0.25%	 	0.20%
	IV
	 	≥ 3.5:1.0	 	1.50%	 	0.50%	 	0.25%





The Applicable Rate shall be determined in accordance with the foregoing table based on the
Leverage Ratio as of the end of each Fiscal Quarter for the first three Fiscal Quarters of each
Fiscal Year and as of the end of each Fiscal Year, as calculated for the four most recently ended
consecutive Fiscal Quarters. Adjustments, if any, to the Applicable Rate shall be effective five
Business Days after the Administrative Agent is scheduled to receive the applicable financials
under Section 5.01(a) or (b) and certificate under Section 5.01(c). If the Borrower fails to
deliver the financials to the Administrative Agent at the time required hereunder, then the
Applicable Rate shall be set at Level IV until such financials are so delivered. Notwithstanding
anything herein to the contrary, the Applicable Rate shall be set at Level II as of the Effective
Date hereof and may not be set at Level I until adjusted based on the financials for the Fiscal
Year ending December 31, 2007.




          “Approved Fund” has the meaning assigned to such term in Section 9.04.



          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.



          “Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and the date of termination of the Commitments.



          “Banking Services” means each and any of the following bank services provided to the
Borrower or any Subsidiary by any Lender or any of its Affiliates: (a) commercial credit cards, (b)
stored value cards and (c) treasury management services (including, without limitation, controlled
disbursement, automated clearinghouse transactions, return items, overdrafts and interstate
depository network services).









 



3


          “Banking Services Obligations” means any and all obligations of the Borrower or any
Subsidiary, whether absolute or contingent and howsoever and whensoever created, arising, evidenced
or acquired (including all renewals, extensions and modifications thereof and substitutions
therefor) in connection with Banking Services.



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



          “Borrower” means TechTeam Global, Inc., a Delaware corporation.



          “Borrowing” means (a) Revolving Loans of the same 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” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.



          “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in Chicago or Detroit are authorized or required by law to remain closed;
provided 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.



          “Capital Expenditures” means, without duplication, any expenditure or commitment to
expend money for any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Company and the Subsidiaries prepared
in accordance with GAAP.



          “Capital Lease Obligations” of any Person means 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.



          “Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of Equity Interests representing more than 20% of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the Borrower by
Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed
by directors so nominated; or (c) the acquisition of Control of the Borrower by any Person or
group.



          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, 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 the Issuing Bank (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lender’s or the 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.



          “Changes” has the meaning set forth in Section 9.15.









 



4


          “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.



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



          “Collateral” means any and all present or future real or personal property owned,
leased or operated by a Person, which property is covered by the Collateral Documents and any and
all other property of any Loan Party, now existing or hereafter acquired, that may at any time be
or become subject to a security interest or Lien in favor of Administrative Agent, on behalf of
itself and the Lenders, to secure the Secured Obligations.



          “Collateral Documents” means, collectively, the Security Agreements and all other
agreements, instruments and documents executed in connection with this Agreement at any time
(either before, concurrently or after the Effective Date) that are intended to create or evidence
Liens to secure the Secured Obligations, including, without limitation, all other security
agreements, pledge agreements, mortgages, deeds of trust, loan agreements, notes, guarantees,
subordination agreements, pledges, powers of attorney, consents, assignments, contracts, fee
letters, notices, leases, financing statements and all other agreements, instruments and documents.



          “Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.08 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender’s Commitment is set forth on Schedule
2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders’ Commitments is
$40,000,000.



          “Consolidated Adjusted EBITDA” means Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (a) Consolidated Interest
Expense, (b) consolidated income tax expense, (c) depreciation, (d) amortization (excluding
amortization of receivables), (e) bona fide direct costs and expenses incurred as a result of the
NewVectors Acquisition paid by the Borrower and in an aggregate amount not to exceed the amounts
described in the flow of funds memo delivered to the Administrative Agent prior to the Effective
Date, and (f) extraordinary non-cash losses (as determined in accordance with GAAP) incurred other
than in the ordinary course of business, minus, to the extent included in Consolidated Net
Income, extraordinary gains (as determined in accordance with GAAP) realized other than in the
ordinary course of business, all calculated for the Borrower and the Subsidiaries on a consolidated
basis.



          “Consolidated Capital Expenditures” means, with reference to any period, the Capital
Expenditures of the Borrower and the Subsidiaries calculated on a consolidated basis for such
period.



          “Consolidated Fixed Charges” means, for any period, Consolidated Interest Expense,
plus Consolidated Lease Expense, plus cash income taxes, plus Restricted
Payments, all as calculated for such period and for the Borrower and the Subsidiaries on a
consolidated basis.



          “Consolidated Indebtedness” means at any time the Indebtedness of the Borrower and the
Subsidiaries calculated on a consolidated basis.









 



5


          “Consolidated Interest Expense” means, with reference to any period, the interest
expense of the Borrower and the Subsidiaries calculated on a consolidated basis for such period.



          “Consolidated Lease Expense” means, with reference to any period, the aggregate fixed
amounts payable by the Borrower and the Subsidiaries under any operating leases, calculated on a
consolidated basis for the Borrower and the Subsidiaries for such period in accordance with GAAP.



          “Consolidated Net Income” means, with reference to any period, the net income (or
loss) of the Borrower and the Subsidiaries calculated on a consolidated basis for such period.



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



          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



          “Defaulting Lender” means any Lender with respect to which any of following is in
effect (i) such Lender has refused to make available its portion of any Borrowing, to acquire
participations in a Swingline Loan pursuant to Section 2.04 or to fund its portion of any
unreimbursed payment under Section 2.05(e), or (ii) such Lender has notified in writing the
Borrower and/or the Administrative Agent that it does not intend to comply with its obligations
under Section 2.04, 2.05 or 2.06.



          “Departing Lender” has the meaning set forth in Section 2.19(a).



          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.



          “dollars”, “Dollars” or “$” refers to lawful money of the United
States of America.



          “Dollar Amount” of any currency at any date shall mean (i) the amount of such currency
if such currency is Dollars or (ii) the equivalent in such currency of such amount of Dollars if
such currency is any currency other than Dollars, calculated on the basis of the arithmetical mean
of the buy and sell spot rates of exchange of the Administrative Agent for such currency on the
London market at 11:00 a.m., London time, on such date.



          “Domestic Subsidiary” shall mean each present and future Subsidiary which is not a
Foreign Subsidiary.



          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).



          “Eligible Currency” means any currency other than Dollars (i) that is readily
available, (ii) that is freely traded, (iii) in which deposits are customarily offered to banks in
the London interbank market, (iv) which is convertible into Dollars in the international interbank
market, (v) as to which an Equivalent Amount may be readily calculated and (vi) as to which the
Issuing Bank has agreed may be an Eligible Currency. If, after the designation by the Issuing Bank
of any currency as an Eligible Currency, (x) currency control or other exchange regulations are
imposed in the country in which such currency is issued with the result that different types of
such currency are introduced, (y) such currency is, in the determination of the Issuing Bank, no
longer readily available or freely traded or (z) in the determination of the Issuing Bank, an
Equivalent Amount of such currency is not readily calculable, the Issuing Bank









 



6



shall promptly notify the Borrower, and such currency shall no longer be an Eligible Currency until
such time as the Issuing Bank agrees to reinstate such currency as an Eligible Currency.



          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous Material or to health and
safety matters.



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



          “Equity Interests “ means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



          “Equivalent Amount” of any currency with respect to any amount of Dollars at any date
shall mean the equivalent in such currency of such amount of Dollars, calculated on the basis of
the arithmetical mean of the buy and sell spot rates of exchange of the Administrative Agent for
such other currency at 11:00 a.m., London time, on the date on or as of which such amount is to be
determined.



          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.



          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, 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” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (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;
(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 the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate 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.



          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such









 



7



Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.



          “Event of Default” has the meaning assigned to such term in Article VII.



          “Excluded Taxes” means, 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
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income
by the United States of America, 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, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.18(b)), 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 2.16(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 the
Borrower with respect to such withholding tax pursuant to Section 2.16(a).



          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.



          “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, assistant treasurer or controller of the Borrower.



          “Fiscal Quarter” means each of the quarterly accounting periods of the Borrower,
ending on March 31, June 30, September 30 and December 31 of each year.



          “Fiscal Year” means each annual accounting period of the Borrower ending on December
31 of each year.



          “Fixed Charge Coverage Ratio” means, the ratio, determined as of the end of each of
Fiscal Quarter, of (a) Consolidated EBITDA plus Consolidated Lease Expense minus
Consolidated Capital Expenditures to (b) Consolidated Fixed Charges, all as calculated for the
most-recently ended four Fiscal Quarters on a consolidated basis.



          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



          “Foreign Subsidiary” shall mean any Subsidiary incorporated or formed in any
jurisdiction other than any State of the United States of America.



          “GAAP” means generally accepted accounting principles in the United States of America.




 









 





 8




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




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.




          “Guarantors” means all present and future Domestic Subsidiaries, excluding the
Inactive Subsidiary, and, with respect to the Obligations of the Letter of Credit Applicants, the
Borrower.




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




          “Inactive Subsidiary” means TechTeam Capital Group, L.L.C., a Michigan limited
liability company and TechTeam Asia Pacific Ltd, an Indian entity, and TechTeam Global, a Mauritius
entity, for as long as they are not either operating or holding companies.




          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind, (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, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property acquired by such
Person, (e) all obligations of such Person in respect of the deferred purchase price of property or
services (excluding current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by
such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person (but
excluding obligations under any operating leases of such Person), (i) all obligations, contingent
or otherwise, of such Person as an account party in respect of letters of credit and letters of
guaranty and (j) all obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances. 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 to the extent the terms of such Indebtedness provide that such Person is not liable
therefor.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.




 









 








 9




          “Indemnitee” has the meaning set forth in Section 9.03.




          “Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Borrower that is not guaranteed by any other Person or subject to any other credit enhancement.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07.




          “Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (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 Borrowing 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, and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.




          “Interest Period” means 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 thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, 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 (ii) any
Interest Period pertaining to a Eurodollar Borrowing 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, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.




          “Issuing Bank” means JPMorgan Chase Bank, N.A. in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity as provided in Section 2.05(i).
The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.




          “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.




          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower and/or any of the Letter of
Credit Applicants at such time. The LC Exposure of any Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.




          “Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the context
otherwise requires, the term “Lenders” includes the Swingline Lender.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




 









 





 10




          “Letter of Credit Applicant” means any Subsidiary which provides the Borrower and the
Administrative Agent written notice at least fifteen (15) days in advance of its intention to
become a Letter of Credit Applicant and includes an incumbency certificate executed by an officer
of such Subsidiary and all other documents relating to the organization, existence and good
standing such Subsidiary as reasonably requested by the Administrative Agent.




          “Leverage Ratio” means, as of the end of any Fiscal Quarter or Fiscal Year, the ratio
of (a) the Consolidated Indebtedness minus the difference between all cash and cash
equivalents held by the Borrower and its Domestic Subsidiaries in the United States of America as
of such Fiscal Quarter end or Fiscal Year end, as the case may be, and $5,000,000 to (b) the
Consolidated Adjusted EBITDA for the period of four consecutive Fiscal Quarters ending with such
Fiscal Quarter end or Fiscal Year end, as the case may be.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor or substitute
page of such Service, or any successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar
Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for
a maturity comparable to such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (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 asset 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” means this Agreement, any promissory notes issued pursuant to this
Agreement, any Letter of Credit applications, the Collateral Documents, the Loan Guaranties, and
all other agreements, instruments, documents and certificates identified in Section 4.01 executed
and delivered to, or in favor of, the Administrative Agent or any Lenders and including all other
pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements
and all other written matter whether heretofore, now or hereafter executed by or on behalf of any
Loan Party, or any employee of any Loan Party, and delivered to the Administrative Agent or any
Lender in connection with the Agreement or the transactions contemplated thereby. Any reference in
the Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits
or schedules thereto, and all amendments, restatements, supplements or other modifications thereto,
and shall refer to the Agreement or such Loan Document as the same may be in effect at any and all
times such reference becomes operative.




          “Loan Guaranty” means each guaranty agreement, in form and substance acceptable to the
Administrative Agent, entered into by any Loan Party at any time for the benefit of the
Administrative Agent and the Lenders pursuant to this Agreement, as amended or modified from time
to time.




 









 








 11




          “Loan Parties” means the Borrower and the Guarantors.




          “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, prospects or condition, financial or otherwise, of the Borrower and the Subsidiaries
taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under any
Loan Document or (c) the rights of or benefits available to the Lenders under any Loan Document.




          “Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the
Borrower and the Subsidiaries in an aggregate principal amount exceeding $1,500,000. For purposes
of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or
any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.




          “Maturity Date” means June 1, 2012.




          “Maximum Rate” has the meaning set forth in Section 9.15.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Mortgage” means each mortgage, deed of trust or other agreement which conveys or
evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent
and the Lenders, on real property owned by a Loan Party, including any amendment, restatement,
modification or supplement thereto.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “NewVectors Acquisition” means the Acquisition by the Borrower of 100% of the Equity
Interests of NewVectors pursuant to the NewVectors Acquisition Documents.




          “NewVectors Acquisition Certificate” is defined in Section 4.01(m).




          “NewVectors Acquisition Closing Date” means the date the NewVectors Acquisition closes
and the Borrower acquires 100% of the Equity Interests of NewVectors in accordance with the
NewVectors Acquisition Documents.




          “NewVectors Acquisition Documents” means the NewVectors Purchase Agreement and all
other material agreements, documents and instruments executed in connection with therewith or
otherwise in connection with the NewVectors Acquisition.




          “NewVectors Purchase Agreement” means the NewVectors Membership Interest Purchase
Agreement dated May 23, 2007, by and among the TechTeam Government Solutions, Inc. and NewVectors
Holding, LLC, Altarum Institute and Altarum Supporting Organization, Inc.




          “NewVectors” means NewVectors LLC, a Michigan limited liability company.




 









 








 12




          “Obligations” means all unpaid principal of and accrued and unpaid interest on the
Loans, all accrued and unpaid fees, all LC Exposure, and all expenses, reimbursements, indemnities
and other obligations of the Borrower, any Letter of Credit Applicant or any party to the Loan
Documents to the Lenders or to any Lender, the Agent, the LC Issuer or any indemnified party
arising under the Loan Documents.




          “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.




          “Participant” has the meaning set forth in Section 9.04.




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Encumbrances” means:





     (a) Liens imposed by law for taxes that are not yet due or are being contested in
compliance with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like
Liens imposed by law, arising in the ordinary course of business and securing obligations
that are not overdue by more than 30 days or are being contested in compliance with Section
5.04;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations;




     (d) deposits to secure the performance of bids, trade contracts, leases, statutory
obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature, in each case in the ordinary course of business;




     (e) judgment liens in respect of judgments that do not constitute an Event of Default
under clause (k) of Article VII; and




     (f) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower or any Subsidiary;


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Investments” means:





     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United States of
America), in each case maturing within one year from the date of acquisition thereof;




     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, the highest credit rating
obtainable



 









 




 13






from S&P or from Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time deposits
maturing within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of not less than
$500,000,000;




     (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution
satisfying the criteria described in clause (c) above; and




     (e) money market funds that (i) comply with the criteria set forth in Securities and
Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA
by S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.



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




          “Plan” means 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,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its office located at 270 Park Avenue,
New York, New York; each change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.




          “Pro Forma Opening Statements” has the meaning set forth in Section 4.01(q).




          “Projections” has the meaning set forth in Section 4.01(q).




          “Register” has the meaning set forth in Section 9.04.




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




          “Replacement Lender” has the meaning set forth in Section 2.19(a).




          “Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided, that, “Required Lenders”
shall be 100% at any time when there are only two (2) Lenders party to this Agreement.




          “Requirement of Law” means, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.




 









 





 14




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests in the Borrower or any option, warrant or
other right to acquire any such Equity Interests in the Borrower.




          “Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




          “Revolving Loan” means a Loan made pursuant to Section 2.03.




          “S&P” means Standard & Poor’s.




          “SEC” means the United States Securities and Exchange Commission, or any Governmental
Authority succeeding to any or all of the functions of said Commission.




          “Secured Obligations” means, collectively, (i) the Obligations, (ii) the Banking
Services Obligations and (iii) the Swap Agreement Obligations owing to one or more Lenders or their
Affiliates.




          “Security Agreement” means each security agreement, pledge agreement, pledge and
security agreement and similar agreement and any other agreement from any Loan Party granting a
Lien on any of its personal property (including without limitation any Equity Interests owned by
such Loan Party), each in form and substance acceptable to the Administrative Agent, entered into
by any Loan Party at any time for the benefit of the Administrative Agent and the Lenders pursuant
to this Agreement, as amended or modified from time to time.




          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject, with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.




          “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity 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, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.





 









 




15


          “Subsidiary” means any subsidiary of the Borrower.



          “Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a
Swap Agreement.



          “Swap Agreement Obligations” of a Person means any and all obligations of such Person,
whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), under
(a) any and all Swap Agreements, and (b) any and all cancellations, buy backs, reversals,
terminations or assignments of any Swap Agreement transaction.



          “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.



          “Swingline Lender” means JPMorgan Chase Bank, N.A. in its capacity as lender of
Swingline Loans hereunder.



          “Swingline Loan” means a Loan made pursuant to Section 2.04.



          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



          “Transactions” means the execution, delivery and performance by the Borrower of this
Agreement, the borrowing of Loans, the use of the proceeds thereof and the issuance of Letters of
Credit hereunder and the closing of the NewVectors Acquisition and the transactions relating
thereto.



          “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 LIBO Rate or the Alternate Base Rate.



          “Withdrawal Liability” means 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.



          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”) 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









 



16

(a) any definition of or reference to any 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, (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 and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if the Borrower notifies the Administrative Agent
that the Borrower requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. [For purposes of calculating the Applicable Rate, all
financial covenants and all other covenants, any Acquisition (other than the New Vector
Acquisition) or any sale or other disposition outside the ordinary course of business by the
Borrower or any of the Subsidiaries of any asset or group of related assets in one or a series of
related transactions, including the incurrence of any Indebtedness and any related financing or
other transactions in connection with any of the foregoing, occurring during the period for which
such matters are calculated shall be deemed to have occurred on the first day of the relevant
period for which such matters were calculated on a pro forma basis acceptable to the Administrative
Agent.]




ARTICLE II




The Credits




          SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to (i) make Revolving Loans denominated in Dollars to the Borrower from time to
time and (ii) participate in Letters of Credit issued in Dollars or any Eligible Currency upon the
request of the Borrower or a Letter of Credit Applicant, in each case, during the Availability
Period in an aggregate principal amount that will not result in (a) the Dollar Amount of such
Lender’s Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the Dollar Amount of
the Aggregate Revolving Credit Exposure exceeding the Aggregate Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans.




          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments
are several and no Lender shall be responsible for any other Lender’s failure to make Loans as
required.




          (b) Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline









 



17



Loan shall be an ABR Loan. Each Lender at its option may 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 the Borrower to repay such Loan in
accordance with the terms of this Agreement.



          (c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing, such
Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less
than $3,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e). Borrowings of more than one Type and Class
may be outstanding at the same time; provided that there shall not at any time be more than
a total of three Eurodollar Revolving Borrowings outstanding.



          (d) Notwithstanding any other provision of this Agreement, the 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 Maturity Date.



          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 11:00 a.m., EST, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., EST, one
Business Day before the date of the proposed Borrowing; provided that any such notice of an
ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as contemplated by
Section 2.05(e) may be given not later than 10:00 a.m., EST, on the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written
Borrowing Request shall specify the following information in compliance with Section 2.02:




(i) the aggregate amount of the requested Borrowing;




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




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




(iv) 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”; and




(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.


If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the 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.










 



18




          SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the 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
$5,000,000 or (ii) the sum of the Dollar Amount of the Aggregate Revolving Credit Exposure
exceeding the Aggregate Commitment; 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, the Borrower may borrow, prepay
and reborrow Swingline Loans.



          (b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, EST, 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 amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such notice received from the
Borrower. The Swingline Lender shall make each Swingline Loan available to the Borrower by means
of a credit to the general deposit account of the 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 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m., EST, on the requested date of
such Swingline Loan.



          (c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., EST, on any Business Day require the Lenders to acquire participations on such
Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Lenders will participate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Lender, specifying in such
notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each 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 Applicable Percentage
of such Swingline Loan or Loans. Each 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. Each Lender shall comply
with its obligation under this paragraph by wire transfer of immediately available funds, in the
same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06
shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from
the Lenders. The Administrative Agent shall notify the Borrower of any participations in any
Swingline Loan acquired 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 the Borrower (or other party on behalf of the
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 Lenders that shall have made their payments pursuant to this paragraph and to the Swingline
Lender, as their interests may appear; provided that any such payment so remitted shall be repaid
to the Swingline Lender or to the Administrative Agent, as applicable, if and to the extent such
payment is required to be refunded to the Borrower for any reason. The purchase of participations
in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the
payment thereof.



          SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower or a Letter of Credit Applicant may request the issuance
of Letters of Credit for its own account, in a form reasonably acceptable to the Administrative
Agent and the Issuing Bank, at any









 



19



time and from time to time during the Availability Period, which Letter of Credit may be issued
denominated in Dollars or any Eligible Currency. In the event of any 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 the Borrower or Letter of Credit Applicant to, or
entered into by the Borrower or Letter of Credit Applicant with, the Issuing Bank relating to any
Letter of Credit, the terms and conditions of this Agreement shall control.



          (b) Notice of 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), the Borrower or Letter of Credit Applicant shall hand deliver or
telecopy (or transmit by electronic communication, if arrangements for doing so have been approved
by the Issuing Bank) to the Issuing Bank and the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and
specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day),
the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit and the currency in which such Letter of Credit shall
be denominated, the name and address of the beneficiary thereof and such other information as shall
be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by the Issuing
Bank, the Borrower and/or Letter of Credit Applicant 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 the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment, renewal or extension
(i) the Dollar Amount of the LC Exposure shall not exceed $5,000,000 and (ii) the Dollar Amount of
the Aggregate Revolving Credit Exposure shall not exceed the Aggregate Commitment.



          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity 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 grants to each Lender, and each Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal to such Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit.
In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower or Letter of Credit Applicant on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded to the Borrower or
Letter of Credit Applicant for any reason. Each 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. If the Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower (and, with respect to each Letter of Credit requested by a Letter
of Credit Applicant, the respective Letter of Credit Applicant) shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not
later than 12:00 noon, EST, on









 



20



the date that such LC Disbursement is made, if the Borrower (and, with respect to each Letter of
Credit requested by a Letter of Credit Applicant, the respective Letter of Credit Applicant) shall
have received notice of such LC Disbursement prior to 10:00 a.m., EST, on such date, or, if such
notice has not been received by the Borrower (and, with respect to each Letter of Credit requested
by a Letter of Credit Applicant, the respective Letter of Credit Applicant) prior to such time on
such date, then not later than 12:00 noon, EST, on (i) the Business Day that the Borrower (and,
with respect to each Letter of Credit requested by a Letter of Credit Applicant, the respective
Letter of Credit Applicant) receives such notice, if such notice is received prior to 10:00 a.m.,
EST, on the day of receipt, or (ii) the Business Day immediately following the day that the
Borrower (and, with respect to each Letter of Credit requested by a Letter of Credit Applicant, the
respective Letter of Credit Applicant) receives such notice, if such notice is not received prior
to such time on the day of receipt; provided that the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section 2.03 or 2.04 that such
payment be financed with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and,
to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing or Swingline Loan. If the Borrower (and, with
respect to each Letter of Credit requested by a Letter of Credit Applicant, the respective Letter
of Credit Applicant) fails to make such payment when due, (i) any LC Disbursement outstanding in
any currency other than Dollars shall be immediately and automatically converted to and
redenominated in Dollars equal to the Dollar Amount of the LC Disbursement determined as of the
date of such conversion at any time an LC Disbursement is to be refunded by an ABR Revolving
Borrowing or Swingline Loan or when the participation of any Lender in such LC Disbursement is to
be funded, and the Borrower shall automatically assume all obligations thereunder jointly and
severally with the applicable Letter of Credit Applicant and (ii) the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower (and,
with respect to each Letter of Credit requested by a Letter of Credit Applicant, the respective
Letter of Credit Applicant) in respect thereof and such Lender’s Applicable Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower (and, with respect to each Letter
of Credit requested by a Letter of Credit Applicant, the respective Letter of Credit Applicant), in
the same manner as provided in Section 2.06 with respect to Loans made by such Lender (and Section
2.06 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and
the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower (and, with respect to each Letter of Credit requested by a Letter of Credit Applicant, the
respective Letter of Credit Applicant) pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank
as their interests may appear. Any payment made by a Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans
or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower (and, with respect to each Letter of Credit requested by a Letter of Credit Applicant, the
respective Letter of Credit Applicant) of its obligation to reimburse such LC Disbursement.



          (f) Obligations Absolute. The Borrower’s (and, with respect to each Letter of Credit
requested by a Letter of Credit Applicant, the respective Letter of Credit Applicant’s) obligation
to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be 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 proving to be forged, fraudulent or
invalid 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 does not comply with the terms of









 



21



such Letter of Credit, or (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, constitute a legal or
equitable discharge of, or provide a right of setoff against, the Borrower’s (and, with respect to
each Letter of Credit requested by a Letter of Credit Applicant, the respective Letter of Credit
Applicant’s) obligations hereunder. Neither the Administrative Agent, the Lenders nor the Issuing
Bank, nor any of their Related Parties, 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 the Borrower
(and, with respect to each Letter of Credit requested by a Letter of Credit Applicant, the
respective Letter of Credit Applicant) to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the Borrower (and, with
respect to each Letter of Credit requested by a Letter of Credit Applicant, the respective Letter
of Credit Applicant) to the extent permitted by applicable law) suffered by the Borrower or Letter
of Credit Applicant 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 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 notify the Administrative Agent and the Borrower (and,
with respect to each Letter of Credit requested by a Letter of Credit Applicant, the respective
Letter of Credit Applicant) by telephone (confirmed by telecopy) 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 the Borrower (and, with
respect to each Letter of Credit requested by a Letter of Credit Applicant, the respective Letter
of Credit Applicant) of its obligation to reimburse the Issuing Bank and the Lenders with respect
to any such LC Disbursement.



          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower (or, with respect to each Letter of Credit requested by a Letter of Credit
Applicant, the respective Letter of Credit Applicant) shall reimburse such LC Disbursement in full
on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each
day from and including the date such LC Disbursement is made to but excluding the date that the
Borrower (or, with respect to each Letter of Credit requested by a Letter of Credit Applicant, the
respective Letter of Credit Applicant) reimburses such LC Disbursement, at the rate per annum then
applicable to ABR Revolving Loans; provided that, if the Borrower (or, with respect to each
Letter of Credit requested by a Letter of Credit Applicant, the respective Letter of Credit
Applicant) fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(c) shall apply. 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 Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for
the account of such Lender to the extent of such payment.









 



22


          (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative 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. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such replacement, (i) the successor 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 thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the 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 replacement, but shall not be required to issue additional
Letters of Credit.



          (j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall
deposit in an account with the Administrative Agent, in the name of the Administrative Agent and
for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date
(including any LC Exposure related to Letters of Credit requested by a Letter of Credit Applicant)
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 the Borrower described in clause (h) or (i) of Article VII. Such deposit
shall be held by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other than
any interest earned on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such
deposits shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the Administrative 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 the reimbursement obligations of the
Borrower and Letter of Credit Applicants for the LC Exposure at such time or, if the maturity of
the Loans has been accelerated, be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.



          SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, EST, to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to an account of the Borrower
maintained with and acceptable to the Administrative Agent and designated by the Borrower in the
applicable Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.



          (b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative Agent









 



23



such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) 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 or (ii) in the case of the Borrower, the interest
rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.



          SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The 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. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.



          (b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.



          (c) Each telephonic and written 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, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) 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;




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




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest








 



24


Period, then the 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 the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing 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 such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.



          SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.



          (b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the Revolving Credit Exposures would exceed the total
Commitments.



          (c) The Borrower shall notify the Administrative Agent of any election to terminate or reduce
the Commitments under paragraph (b) of this Section 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 the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the 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 shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.



          SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date, and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last day of a calendar
month or such other date or dates required by the Swingline Lender.



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



          (c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type 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









 



25



the 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 paragraph (b) or (c) of this
Section shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; 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 obligation
of the Borrower to repay the Loans in accordance with the terms of this Agreement.



          (e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the 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) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) 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 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section.



          (b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00
a.m., EST, three Business Days before the date of prepayment, (ii) in the case of prepayment of an
ABR Revolving Borrowing, not later than 11:00 a.m., EST, one Business Day before the date of
prepayment or (iii) in the case of prepayment of a Swingline Loan, not later than 12:00 noon, EST,
on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment
date and the principal amount of each Borrowing or portion thereof to be prepaid; provided
that, if a notice of prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment may be revoked if
such notice of termination is revoked in accordance with Section 2.08. Promptly following receipt
of any such notice relating to a Revolving Borrowing, the Administrative Agent shall advise the
Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing shall be in
an amount that would be permitted in the case of an advance of a Revolving Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by
accrued interest to the extent required by Section 2.12.



          SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the daily
amount of the difference between the Commitment of such Lender and the Revolving Loans and LC
Exposure of such Lender during the period from and including the Effective Date to but excluding
the date on which such Commitment terminates. Accrued commitment fees shall be payable in arrears
on the last day of March, June, September and December of each year and on the date on which the
Commitments terminate, commencing on the first such date to occur after the date hereof. All
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).



          (b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender
a participation fee with respect to its participations in Letters of Credit, which shall accrue at
the









 



26



same Applicable Rate used to determine the interest rate applicable to Eurodollar Revolving Loans
on the average daily amount of such Lender’s LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date on which such Lender’s Commitment terminates and the
date on which such Lender ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate or rates per annum separately agreed upon between the Borrower
and the Issuing Bank on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the Effective
Date to but excluding the later of the date of termination of the Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees and fronting fees accrued through and including the last day of
March, June, September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the Effective Date;
provided that all such fees shall be payable on the date on which the Commitments terminate
and any such fees accruing after the date on which the Commitments terminate shall be payable on
demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable
within 10 days after demand. All 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).



          (c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees payable
in the amounts and at the times separately agreed upon between the Borrower and the Administrative
Agent.



          (d) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to the Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.



          SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing (including each
Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.



          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.



          (c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section
or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.



          (d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and, in the case of Revolving Loans, upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (c) of this Section 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 prior to the end of the Availability Period), 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 Revolving 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.









 



27


          (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 at times when the Alternate Base Rate is
based on the Prime 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, Adjusted LIBO Rate or LIBO
Rate shall be determined by the Administrative Agent, and such determination shall be conclusive
absent manifest error.



          SECTION 2.13. 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 conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or




     (b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or
its Loan) included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the 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 Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective, and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing; provided that if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.




          SECTION 2.14. Increased Costs. (a) If any Change in Law shall:





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




          (b) If any Lender or the Issuing Bank determines 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









 



28



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 the 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 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 shall be delivered to the Borrower and shall
be conclusive absent manifest error. The 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 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 shall not constitute a waiver of such Lender’s or the Issuing Bank’s right
to demand such compensation; provided that the Borrower shall not be required to compensate
a Lender or the Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 270 days prior to the date that such Lender or the Issuing Bank, as the case may
be, notifies the 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 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.



          SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on 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
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(b) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for
the loss, 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 LIBO 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 any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.



          SECTION 2.16. Taxes. (a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided that if the Borrower shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making









 



29



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



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



          (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 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 the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses 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 the 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 by the
Borrower to a Governmental Authority, the 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 the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
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 the Borrower as will permit such payments to be made without withholding or at a
reduced rate.



          (f) If the Administrative Agent or a Lender determines, in its sole discretion, that it has
received a refund of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.16, it
shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or
additional amounts paid, by the Borrower under this Section 2.16 with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or
such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to the Borrower or any other Person.



          SECTION 2.17. Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a)
The Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15
or









 



30



2.16, or otherwise) prior to 12:00 noon, EST, on the date when due, in immediately available funds,
without set-off 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 designated by it, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto. 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 hereunder
shall be due on a day that is not a Business Day, 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 hereunder shall be made in
dollars.



          (b) Any proceeds of Collateral or payments on Loan Guaranties received by the Administrative
Agent (i) not constituting a specific payment of principal, interest, fees or other sum payable
under the Loan Documents (which shall be applied as specified by the Borrower) or (ii) after an
Event of Default has occurred and is continuing and the Administrative Agent so elects or the
Required Lenders so direct, such funds shall be applied ratably first, to pay any fees,
indemnities, or expense reimbursements including amounts then due to the Administrative Agent and
the Issuing Bank from the Borrower (other than in connection with Swap Agreement Obligations),
second, to pay any fees or expense reimbursements then due to the Lenders from the Borrower
(other than in connection with Swap Agreement Obligations), third, to pay interest then due
and payable on the Loans and the Letters of Credit ratably, fourth, to prepay principal on
the Loans and unreimbursed LC Disbursements ratably, to pay an amount to the Administrative Agent
equal to the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate
amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations and to
payment of any amounts owing with respect to Swap Agreement Obligations and Banking Services
Obligations (all such amounts under this “fourth” item being applied ratably in accordance with all
such amounts due), fifth, to the payment of any other Secured Obligation due to the
Administrative Agent or any Lender or any of their Affiliates by the Borrower, and sixth,
to the payment of the surplus, if any, to whoever may be lawfully entitled to receive such surplus.
The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and
reverse and reapply any and all such proceeds and payments to any portion of the Secured
Obligations.



          (c) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, 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 such parties, and (ii) second, towards payment of principal and unreimbursed
LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal and unreimbursed LC Disbursements then due to such parties.



          (d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving 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 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 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 and participations in LC Disbursements and Swingline
Loans; provided that (i) if any such participations are









 



31



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 the 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 the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower 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 the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.



          (e) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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.



          (f) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), 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 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, 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 judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.14 or
2.16, 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. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



          (b) If any Lender requests compensation under Section 2.14, or if the Borrower is required to
pay any additional amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, or if any Lender defaults in its obligation to fund Loans hereunder, then
the 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 9.04), all its interests, rights and obligations under
this Agreement to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent (and if a Commitment is being
assigned, the Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender
shall have received payment of an amount equal to the









 



32



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, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
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 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a 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 the Borrower to require
such assignment and delegation cease to apply.



     SECTION 2.19. Departing Lenders; Replacement of Lenders.



     (a) If any Lender (i) shall become affected by any of the changes or events described in
Sections 2.14 or 2.16 and the Borrower is required to pay additional amounts or make indemnity
payments with respect to the Lender thereunder, (ii) is a Defaulting Lender or (iii) has failed to
consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of
Section 9.02 or any other provision of any Loan Document requires the consent of all affected
Lenders and with respect to which the Required Lenders shall have granted their consent or (iv) any
other Lender determined by the agreement of the Borrower and the Administrative Agent (any such
Lender being hereinafter referred to as a “Departing Lender”), then in such case, the
Borrower may, upon at least five (5) Business Days’ notice to the Administrative Agent and such
Departing Lender (or such shorter notice period specified by the Administrative Agent), designate a
replacement lender acceptable to the Administrative Agent (a “Replacement Lender”) to which
such Departing Lender shall, subject to its receipt (unless a later date for the remittance thereof
shall be agreed upon by the Borrower and the Departing Lender) of all amounts owed to such
Departing Lender under Sections 2.14 or 2.16, assign all (but not less than all) of its interests,
rights, obligations, Loans and Commitments hereunder; provided, that the Departing 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, from the Replacement Lender (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the case of all other
amounts). Upon any assignment by any Lender pursuant to this Section 2.19 becoming effective, the
Replacement Lender shall thereupon be deemed to be a “Lender” for all purposes of this Agreement
(unless such Replacement Lender was, itself, a Lender prior thereto) and such Departing Lender
shall thereupon cease to be a “Lender” for all purposes of this Agreement and shall have no further
rights or obligations hereunder (other than pursuant to Section 2.14 or 2.16 and Section 9.03)
while such Departing Lender was a Lender.



     (b) Notwithstanding any Departing Lender’s failure or refusal to assign its rights,
obligations, Loans and Commitments under this Section 2.19, the Departing Lender shall cease to be
a “Lender” for all purposes of this Agreement and the Replacement Lender shall be substituted
therefor upon payment to the Departing Lender by the Replacement Lender of all amounts set forth in
this Section 2.19 without any further action of the Departing Lender.



ARTICLE III




Representations and Warranties




          The Borrower represents and warrants to the Lenders that:




          SECTION 3.01. Organization; Powers. Each of the Borrower and the Subsidiaries is
duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, would not reasonably be
expected to result in a Material









 



33



Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required. Schedule 3.01 sets forth (a) a correct and complete
list of the name and relationship to the Borrower of each and all of the Subsidiaries, (b) a true
and complete listing of each class of each of the Subsidiaries’ authorized Equity Interests, all of
which, to the extent outstanding, are owned beneficially and of record by the Persons identified on
Schedule 3.01, and (c) the type of entity of the Borrower and each of the Subsidiaries. All
of the issued and outstanding Equity Interests owned by any Loan Party have been (to the extent
such concepts are relevant with respect to such ownership interests) duly authorized and issued and
are fully paid and non-assessable. Each Inactive Subsidiary has no revenues, and does not and will
not own at any time assets with an aggregate value in excess of $100,000.



          SECTION 3.02. Authorization; Enforceability. The Transactions are within the
Borrower’s or the Subsidiaries’ corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes a legal, valid and binding obligation of the Borrower,
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. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of the Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding upon the Borrower or any of the Subsidiaries or its assets, or give
rise to a right thereunder to require any payment to be made by the Borrower or any of the
Subsidiaries, and (d) except as provided herein, will not result in the creation or imposition of
any Lien on any asset of the Borrower or any of the Subsidiaries.



          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The Borrower
has heretofore furnished to the Lenders its consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2006,
reported on by Ernst & Young LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended March 31, 2007, certified by its chief financial
officer. Such financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and the consolidated Subsidiaries
as of such dates and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the statements referred to in clause (ii)
above.



          (b) Since December 31, 2006, there has been no material adverse change in the business,
assets, operations, prospects or condition, financial or otherwise, of the Borrower and the
Subsidiaries, taken as a whole.



          SECTION 3.05. Properties. (a) Each of the Borrower and the Subsidiaries has good
title to, or valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.



          (b) Each of the Borrower and the Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its business, and the
use thereof by the Borrower and the Subsidiaries does not infringe upon the rights of any other
Person, except for any









 



34



such infringements that, individually or in the aggregate, would not reasonably be expected to
result in a Material Adverse Effect.



          SECTION 3.06. Litigation and Environmental Matters. (a) There are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any of the Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination and that, if
adversely determined, would reasonably be expected, individually or in the aggregate, to result in
a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve this Agreement or
the Transactions.



          (b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of the Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.



          (c) Since the date of this Agreement, there has been no change in the status of the Disclosed
Matters that, individually or in the aggregate, has resulted in, or would reasonably be expected to
result in a Material Adverse Effect.



          SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower and the
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except where the failure to do so, individually or in the aggregate, would not
reasonably be expected to result in a Material Adverse Effect.



          SECTION 3.08. Investment Company Status. Neither the Borrower nor any of the
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



          SECTION 3.09. Taxes. Each of the Borrower and the Subsidiaries has filed or caused
to be filed all Tax returns and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure to do so would not
reasonably be expected to result in a Material Adverse Effect.



          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, would reasonably be expected to result in a Material Adverse Effect. The
present value of all accumulated benefit obligations under each Plan (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 $1,000,000 the fair
market value of the assets of such Plan, and 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 $1,000,000 the fair market value of the
assets of all such underfunded Plans.



          SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,









 



35



instruments and corporate or other restrictions to which it or any of the Subsidiaries is subject,
and all other matters known to it, that, individually or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect. No reports, financial statements, certificates or
other written information furnished by or on behalf of the Borrower to the Administrative Agent or
any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified
or supplemented by other information so furnished) contains any material misstatement of fact;
provided that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions believed to be
reasonable at the time.



          SECTION 3.12. (a) Immediately after the consummation of the Transactions to occur on the
Effective Date, (i) the fair value of the assets of each Loan Party, at a fair valuation, will
exceed its debts and liabilities, subordinated, contingent or otherwise; (ii) the present fair
saleable value of the property of each Loan Party 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; (iii) each Loan
Party will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (iv) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is engaged as such
business is now conducted and is proposed to be conducted after the Effective Date.



          (b) No Loan Party intends to, or will permit any of its Subsidiaries to, and no Loan Party
believes that it or any of its Subsidiaries will, incur debts beyond its ability to pay such debts
as they mature, taking into account the timing of and amounts of cash to be received by it or any
such Subsidiary and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness or the Indebtedness of any such Subsidiary.



          SECTION 3.13. Security Interest in Collateral. The provisions of this Agreement and
the other Loan Documents create legal and valid Liens on all the Collateral in favor of the
Administrative Agent, for the benefit of the Lenders, and, upon the filing of appropriate financing
statements, and, with respect to any intellectual property, filings in the United States Patent and
Trademark Office and the United States Copyright Office, or taking such other action as may be
required for perfection under applicable law, such Liens will constitute, to the extent required by
the Loan Documents, perfected and continuing Liens on the Collateral, securing the Secured
Obligations, enforceable against the applicable Loan Party and all third parties, and having
priority over all other Liens on the Collateral other than with respect to Liens expressly
permitted by Section 6.02, to the extent any such Liens would have priority over the Liens in favor
of the Administrative Agent pursuant to any applicable law.



          SECTION 3.14. Labor Disputes. As of the Effective Date, there are no strikes, lockouts
or slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower,
threatened. There are no labor controversies pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of the Subsidiaries (i) which would reasonably
be expected, individually or in the aggregate, to result in a Material Adverse Effect, or (ii) that
involve this Agreement or the Transactions.



          SECTION 3.15. No Default. No Default has occurred and is continuing.



          SECTION 3.16. Federal Reserve Regulations. No part of the proceeds of any Loan have
been used, whether directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations T, U, and X.



          SECTION 3.17. NewVectors Acquisition. Simultaneously with the disbursement of the
initial Loan hereunder, the Borrower or Subsidiary will own, free and clear of all Liens other than
those









 



36



allowed hereunder, good and marketable title to 100% of the Equity Interests of NewVectors and
shall have otherwise completed the NewVectors Acquisition in accordance with the NewVectors
Acquisition Documents and in accordance with all laws and regulations and all other Requirements of
Law. Complete and correct copies of all NewVectors Acquisition Documents have been delivered to
the Agent before the Effective Date. All conditions precedent required as of closing under the
NewVectors Acquisition Documents to complete the NewVectors Acquisition shall have been completed.
The total consideration paid or payable (including without limitation all Indebtedness assumed,
guaranties or other liabilities incurred, all deferred payments and all other direct or indirect
consideration) for the NewVectors Acquisition will not exceed the amount described in the
NewVectors Purchase Agreement delivered to the Administrative Agent prior to the Effective Date and
all costs and expenses in connection with the NewVectors Acquisition are described in the flow of
funds memo delivered to the Administrative Agent prior to the Effective Date. All of Borrower’s or
any Subsidiary representations in the NewVectors Acquisition Certificate are true and correct. To
Borrower’s knowledge, there has been no material adverse change in the business, assets,
operations, prospects or condition, financial or otherwise, of NewVectors from that described in
the Draft Outline of Findings prepared by prepared by Price Waterhouse Coopers and dated February
28, 2007 and delivered to the Administrative Agent prior to the Effective Date.



          SECTION 3.18. Common Enterprise. The successful operation and condition of each of
the Loan Parties is dependent on the continued successful performance of the functions of the group
of the Loan Parties as a whole and the successful operation of each of the Loan Parties is
dependent on the successful performance and operation of each other Loan Party. Each Loan Party
expects to derive benefit (and its board of directors or other governing body has determined that
it may reasonably be expected to derive benefit), directly and indirectly, from (i) successful
operations of each of the other Loan Parties and (ii) the credit extended by the Lenders to the
Borrowers hereunder, both in their separate capacities and as members of the group of companies.
Each Loan Party has determined that execution, delivery, and performance of this Agreement and any
other Loan Documents to be executed by such Loan Party is within its purpose, will be of direct and
indirect benefit to such Loan Party, and is in its best interest.



ARTICLE IV




Conditions




          SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):





     (a) The Administrative Agent (or its counsel) shall have received from each party
thereto either (i) a counterpart of each Loan Document signed on behalf of each party
thereto or (ii) written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that each party thereto
has signed a counterpart of this Agreement, other than any Loan Documents which are
permitted to be delivered post closing pursuant to a post closing letter agreement executed
by the Administrative Agent and the Borrower.




     (b) The Administrative Agent shall have received a favorable written opinion counsel
for the Borrower and the Guarantors, in the form and substance acceptable to the
Administrative Agent. The Borrower hereby requests such counsel to deliver such opinion.












 





37




     (c) The Administrative Agent shall have received such documents and certificates
as the Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower and the Guarantors, the
authorization of the Transactions and any other legal matters relating to the Borrower, the
Guarantors this Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.




     (d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02.




     (e) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder.




     (f) The Administrative Agent shall have received fully executed originals of pay-off
letters reasonably satisfactory to the Administrative Agent confirming that all of the Loan
Parties’ (including NewVectors) obligations under all Indebtedness required by the
Administrative Agent to be paid in full on the Effective Date and releasing all Liens in
connection therewith.




     (g) The Administrative Agent shall have received all Lien and other searches that the
Administrative Agent deems necessary, the Loan Parties shall have delivered UCC termination
statements or amendments to existing UCC financing statements with respect to any filings
against the Collateral as may be requested by the Administrative Agent and shall have
authorized the filing of such termination statements or amendments, the Administrative Agent
shall have been authorized to file any UCC financing statements that the Administrative
Agent deems necessary to perfect its Liens in the Collateral and Liens creating a first
priority security interest in the Collateral in favor of the Administrative Agent shall
have been perfected.




     (h) All legal (including tax implications) and regulatory matters, including, but not
limited to compliance with applicable requirements of Regulations U, T and X of the Board
shall be satisfactory to the Administrative Agent and the Lenders.




     (i) The Loan Parties shall have delivered evidence of insurance coverage in form,
scope, and substance reasonably satisfactory to the Administrative Agent.




     (j) The Borrower shall have obtained all Governmental Authorizations and all consents
of other Persons, in each case that are necessary in connection with the NewVectors
Acquisition and the other transactions contemplated by the NewVectors Acquisition Documents,
and each of the foregoing shall be in full force and effect. All applicable waiting periods
shall have expired without any action being taken by any competent authority which would
restrain, prevent or otherwise impose adverse conditions on the completion of the NewVectors
Acquisition or the financing thereof. No action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending,
and the time for any applicable agency to take action to set aside its consent on its own
motion shall have expired.




     (k) The Administrative Agent shall have received all New Vectors Acquisition Documents
and shall be satisfied with the form, structure and terms of the New Vectors Acquisition and
all related transactions, the legal and the regulatory aspects of the New Vectors









 



38



Acquisition and all related transactions and all other legal (including tax implications),
financial and regulatory matters relating to the New Vectors Acquisition and related
transactions.




     (l) (x) All conditions precedent to the NewVectors Acquisition shall have been
satisfied pursuant to the NewVectors Acquisition Documents; (y) The aggregate consideration
paid or payable, including without limitation all direct payments, all deferred payments,
all Indebtedness assumed and all other consideration, for the NewVectors Acquisition will
not exceed the amount described in the NewVectors Asset Purchase Agreement delivered to the
Administrative Agent prior to the Effective Date and all costs and expenses in connection
with the NewVectors Acquisition will not exceed an amount agreed to by the Administrative
Agent; and (z) the Administrative Agent shall have received a certificate (the “NewVectors
Acquisition Certificate”) of the Borrower to the effect set forth in clauses (x) and (y)
above, stating that the Borrower will proceed to consummate the NewVectors Acquisition
substantially in accordance with the NewVectors Acquisition Documents and this Agreement on
the Effective Date and containing such other certifications as may be reasonably required by
the Administrative Agent.




     (m) The Administrative Agent shall have received a certificate from a Financial Officer
concerning the solvency and other appropriate factual information with respect to the
Borrower and the Subsidiaries in form and substance satisfactory to the Administrative
Agent.




     (n) The Administrative Agent shall have received satisfactory results of due diligence
investigations of NewVectors (including without limitation liabilities and contingent
liabilities (e.g., environmental, retiree medical benefits, ERISA, etc.) and contractual
obligations and a review of financial statements of NewVectors and its subsidiaries
satisfactory to the Administrative Agent).




     (o) The absence of injunction or temporary restraining order or any litigation or
threatened litigation which, in the judgment of the Administrative Agent could prohibit the
making of the Loans or the consummation of the NewVectors Acquisition or the related
transactions.




     (p) The Administrative Agent shall have received reasonably satisfactory pro forma
opening financial statements (“Pro Forma Opening Statements”) giving effect to the
NewVectors Acquisition and projections covering a period of not less than five (5) years
(“Projections”) together with such information as the Administrative Agent may reasonably
request to confirm the tax, legal, and business assumptions made in such Pro Forma Opening
Statements and Projections.




     (q) All legal (including tax implications) and regulatory matters and all due diligence
reviews of all litigation of the Borrower and the Subsidiaries (including without limitation
the litigation described on Schedule 4.5) shall be reasonably satisfactory to the
Administrative Agent.




     (r) The Loan Parties shall have delivered such other documents as the Administrative
Agent, the LC Issuer, any Lender or their respective counsel have reasonably requested.


The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02)
at or prior to 3:00 p.m., EST, on June 7, 2007 (and, in the event such conditions are not so
satisfied or waived, the Commitments








 



39


shall terminate at such time).




          SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:





     (a) The representations and warranties of the Borrower set forth in this Agreement
shall be true and correct on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.




     (b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.


Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Borrower on the date thereof as to the
matters specified in paragraphs (a) and (b) of this Section.




ARTICLE V




Affirmative Covenants




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:




          SECTION 5.01. Financial Statements; Ratings Change and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:





     (a) within 90 days after the end of each fiscal year of the Borrower (or such earlier
date as the Borrower may be required to file, after giving effect to any applicable
extensions that have been granted, its applicable annual report by the rules and regulations
of the SEC or any applicable stock exchange), its audited consolidated balance sheet and
related statements of operations, stockholders’ equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Ernst & Young LLP or other independent public accountants of
recognized national standing (without a “going concern” or like qualification or exception
and without any qualification or exception as to the scope of such audit) to the effect that
such consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and the consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;




     (b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower (or such earlier date as the Borrower may be required to file,
after giving effect to any applicable extensions that have been granted, its applicable
quarterly report by the rules and regulations of the SEC or any applicable stock exchange),
the consolidated balance sheet and related statements of operations and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting
forth in each case in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all
certified by one of its Financial Officers as presenting fairly in all









 



40



material respects the financial condition and results of operations of the Borrower and the
consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of footnotes;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably
detailed calculations demonstrating compliance with Sections 6.09 and (iii) stating whether
any change in GAAP or in the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying such
certificate;




     (d) concurrently with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements stating
whether they obtained knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);




     (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary 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 by the Borrower to its shareholders generally, as the case may be;




     (f) promptly after Moody’s or S&P shall have announced a change in the rating
established or deemed to have been established for the Index Debt, written notice of such
rating change; and




     (g) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement, as the Administrative Agent or any Lender may
reasonably request.



          SECTION 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:





     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate
thereof that, if adversely determined, would reasonably be expected to result in a Material
Adverse Effect;




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would reasonably be expected to result in liability of the
Borrower and the Subsidiaries in an aggregate amount exceeding $1,000,000; and




     (d) any other development that results in, or would reasonably be expected to result
in, a Material Adverse Effect.









 



41

Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of the Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and the rights, licenses, permits, privileges and
franchises material to the conduct of its business; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03.




          SECTION 5.04. Payment of Obligations. The Borrower will, and will cause each of the
Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, would be
reasonably be expected to result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its
books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make
payment pending such contest would not reasonably be expected to result in a Material Adverse
Effect.




          SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and will
cause each of the Subsidiaries to, (a) keep and maintain all property material to the conduct of
its business in good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.




          SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and will
cause each of the Subsidiaries to, keep proper books of record and account in which full, true and
correct entries are made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of the Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.




          SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each of the
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, would not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans and
Letters of Credit will be used to refinance existing obligations of the Borrower, to make the
NewVectors Acquisition and for working capital needs and general corporate purposes of the Borrower
and the Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.




          SECTION 5.09. Collateral Security; Further Assurances (a) To guarantee or secure the
payment when due of the Secured Obligations, the Borrower shall execute and deliver, or cause to be
executed and delivered, to the Lenders and the Administrative Agent Collateral Documents granting
or providing for the following:




          (i) Loan Guaranties of all Guarantors.










 



42




          (ii) Security Agreements granting a first priority, enforceable Lien and security interest,
subject only to Liens permitted by Section 6.02, on all present and future accounts, chattel paper,
commercial tort claims, deposit accounts, documents, farm products, fixtures, chattel paper,
equipment, general intangibles, goods, instruments, inventory, investment property,
letter-of-credit rights (as those terms are defined in the UCC) and all other personal property of
the Borrower and each Guarantor; provided, that, Equity Interests in any Inactive
Subsidiary shall not be required to be pledged.




          (iii) All other security and collateral described in the Collateral Documents.




          Notwithstanding the foregoing, the pledge of any shares of Equity Interests in any Foreign
Subsidiary that is owned by the Borrower or any Domestic Subsidiary and is a “controlled foreign
corporation” as defined in the Code shall be limited to 65% of the total voting power of all
classes of voting Equity Interests in any such Foreign Subsidiary; provided further, that,
notwithstanding the foregoing (i) if a pledge of the Equity Interests of such Foreign Subsidiary
representing a greater percentage of the voting power of the Equity Interests can be given without
constituting the pledge an investment of earnings in the United States property under section 956
of the Code (whether pursuant to an amendment of the Code or for any other reason), then the amount
of its Equity Interests pledged shall be increased to such greater percentage of Equity Interests
of such Foreign Subsidiary.




          (b) The Borrower agrees that it will promptly notify the Administrative Agent of the formation
or acquisition of any Subsidiary or other Subsidiary or the acquisition of any assets on which a
Lien is required to be granted and that is not covered by existing Collateral Documents. The
Borrower agrees that it will promptly execute and deliver, and cause each Subsidiary to execute and
deliver, promptly upon the request of the Administrative Agent, such additional Collateral
Documents and other agreements, documents and instruments, each in form and substance satisfactory
to the Administrative Agent, sufficient to grant to the Administrative Agent, for the benefit of
the Lenders and the Administrative Agent, the Loan Guaranties and Liens contemplated by this
Agreement and the Collateral Documents. The Borrower shall deliver, and cause each Guarantor to
deliver, to the Administrative Agent all original instruments payable to it with any endorsements
thereto required by the Administrative Agent and all original certificated securities and other
certificates with respect to any Equity Interests to be pledged owned by the Borrower or any
Subsidiary with any blank stock or other powers required by the Administrative Agent.
Additionally, the Borrower shall execute and deliver, and cause each Subsidiary to execute and
deliver, promptly upon the request of the Administrative Agent, such certificates, legal opinions,
title work and insurance, surveys, lien searches, environmental reports, organizational and other
charter documents, resolutions and other documents and agreements as the Administrative Agent may
reasonably request in connection therewith. The Borrower shall use its best efforts to cause each
lessor of real property to the Borrower or any Guarantor where any material Collateral is located
to execute and deliver to the Administrative Agent an agreement in form and substance reasonably
acceptable to the Administrative Agent duly executed on behalf of such lessor waiving any
distraint, lien and similar rights with respect to any property subject to the Collateral Documents
and agreeing to permit the Administrative Agent to enter such premises in connection therewith.
The Borrower shall execute and deliver, and cause each Guarantor to execute and deliver, promptly
upon the request of the Administrative Agent, such agreements and instruments evidencing any
intercompany loans or other advances among the Borrower and the Subsidiaries, or any of them, and
all such intercompany loans or other advances shall be, and are hereby made, subordinate and junior
to the Secured Obligations and no payments may be made on such intercompany loans or other
advances upon and during the continuance of a Default unless otherwise agreed to by the
Administrative Agent.




          SECTION 5.10 Additional Covenants. If at any time the Borrower or any of the
Subsidiaries shall enter into or be a party to any instrument or agreement, including all such
instruments or







 



43




agreements in existence as of the date hereof and all such instruments or agreements entered into
after the date hereof, relating to or amending any provisions applicable to any of its Indebtedness
which in the aggregate, together with any related Indebtedness, exceeds $1,000,000, which includes
any material covenants or defaults not substantially provided for in this Agreement or more
favorable to the lender or lenders thereunder than those provided for in this Agreement, then the
Borrower shall promptly so advise the Administrative Agent and the Lenders. Thereupon, if the
Administrative Agent or the Required Lenders shall request, upon notice to the Borrower, the
Administrative Agent and the Lenders shall enter into an amendment to this Agreement or an
additional agreement (as the Administrative Agent may request), providing for substantially the
same material covenants and defaults as those provided for in such instrument or agreement to the
extent required and as may be selected by the Administrative Agent.




ARTICLE VI




Negative Covenants




          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants and
agrees with the Lenders that:




          SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:





     (a) Indebtedness created hereunder;




     (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;




     (c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the
Borrower or any other Subsidiary;




     (d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary
of Indebtedness of the Borrower or any other Subsidiary;




     (e) Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof, and
extensions, renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that (i) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of such
construction or improvement and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (e) shall not exceed $1,000,000 at any time outstanding;




     (f) Indebtedness of the Borrower or any Subsidiary as an account party in respect of
trade letters of credit; and




     (g) other unsecured Indebtedness in an aggregate principal amount not exceeding









 



44



$1,500,000 at any time outstanding.



          SECTION 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:





     (a) Permitted Encumbrances;




     (b) any Lien on any property or asset of the Borrower or any Subsidiary existing on the
date hereof and set forth in Schedule 6.02; provided that (i) such Lien shall not
apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and extensions,
renewals and replacements thereof that do not increase the outstanding principal amount
thereof;




     (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a
Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary , as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Borrower or any Subsidiary and (iii)
such Lien shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may be, and
extensions, renewals and replacements thereof that do not increase the outstanding principal
amount thereof;




     (d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower
or any Subsidiary; provided that (i) such security interests secure Indebtedness
permitted by clause (e) of Section 6.01, (ii) such security interests and the Indebtedness
secured thereby are incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement, (iii) the Indebtedness secured thereby does
not exceed the cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of the Borrower
or any Subsidiary.



          SECTION 6.03. Fundamental Changes. (a) The Borrower will not, and will not permit
any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) any of its assets, or all or substantially all of the
stock of any of the Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing (i) any Subsidiary may merge into the
Borrower in a transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary
may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary,
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower
or to another Subsidiary and (iv) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; provided that any such
merger involving a Person that is not a wholly owned Subsidiary immediately prior to such merger
shall not be permitted unless also permitted by Section 6.04.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.










 



45




          SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions. The
Borrower will not, and will not permit any of the Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned Subsidiary prior to
such merger) any capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business unit, except:




          (a) Permitted Investments;




          (b) investments by the Borrower in the capital stock of any Guarantors;




          (c) loans or advances made by the Borrower to any Guarantor, made by any Subsidiary to the
Borrower or any Guarantor and made by any Foreign Subsidiary to any other Foreign Subsidiary;




          (d) Guarantees constituting Indebtedness permitted by Section 6.01;




          (e) Other loans, advances and investments in an aggregate outstanding amount not to exceed
$500,000.




          Notwithstanding anything herein to the contrary, no Investments (including without limitation,
loans and advances and sales, transfers, leases or otherwise disposition of any assets) will be
made in or to any Inactive Subsidiary.




          SECTION 6.05. Swap Agreements. The Borrower will not, and will not permit any of the
Subsidiaries to, enter into any Swap Agreement, except (a) Swap Agreements entered into to hedge or
mitigate risks to which the Borrower or any Subsidiary has actual exposure (other than those in
respect of Equity Interests of the Borrower or any of the Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
rates, from one floating rate to another floating rate or otherwise) with respect to any
interest-bearing liability or investment of the Borrower or any Subsidiary.




          SECTION 6.06. Restricted Payments. The Borrower will not, and will not permit any of
the Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except (a) the Borrower may declare and pay dividends with respect to its
Equity Interests payable solely in additional shares of its common stock, (b) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, and (c) the Borrower may
make Restricted Payments pursuant to and in accordance with stock option plans or other benefit
plans for management or employees of the Borrower and the Subsidiaries.




          SECTION 6.07. Transactions with Affiliates. The Borrower will not, and will not
permit any of the Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of business at prices
and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be
obtained on an arm’s-length basis from unrelated third parties, and (b) transactions between or
among the Borrower and the Guarantors not involving any other Affiliate.




          SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not permit any







 



46




of the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or
assets, or (b) the ability of any Subsidiary to pay dividends or other distributions with respect
to any shares of its capital stock or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions imposed by
law or by this Agreement, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.08 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such restriction or
condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions
and conditions apply only to the Subsidiary that is to be sold and such sale is permitted
hereunder, (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed
by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of
the foregoing shall not apply to customary provisions in leases restricting the assignment thereof.




          SECTION 6.09. Financial Covenants.




          (a) Leverage Ratio. Permit or suffer the Leverage Ratio to exceed (i) 4.00 to 1.0 as
of September 30, 2007 or December 31, 2007, (ii) 3.75 to 1.0 as of March 31, 2008, (iii) 3.5 to 1.0
as of June 30, 2008, or (iv) 3.0 to 1.0 as of the end of any Fiscal Quarter thereafter.




          (b) Fixed Charge Coverage Ratio. Permit or suffer the ratio of the Fixed Charge
Coverage Ratio to less than (i) 1.0 to 1.0 as of September 30, 2007 or December 31, 2007, or (ii)
1.25 to 1.0 as of the end of any Fiscal Quarter or Fiscal Year ending on or after March 31, 2008.




          SECTION 6.10. Government Regulation. No Loan Party shall be or become subject at any
time to any law, regulation, or list of any government agency (including, without limitation, the
U.S. Office of Foreign Asset Control list) that prohibits or limits any Lender from making any
advance or extension of credit to any Loan Party or from otherwise conducting business with the
Borrower or Guarantor, or fail to provide documentary and other evidence of any Loan Party’s
identity as may be requested by any Lender at any time to enable such Lender to verify any Loan
Party’s identity or to comply with any applicable law or regulation, including, without limitation,
Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318.




ARTICLE VII




Events of Default





     If any of the following events (“Events of Default”) shall occur:




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




     (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three Business Days;









 



47



     (c) any representation or warranty made or deemed made pursuant to Section 4.02 by or
on behalf of the Borrower or any Subsidiary in or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report, certificate,
financial statement or other document furnished pursuant to this Agreement or any amendment
or modification hereof or waiver hereunder, shall prove to have been incorrect in any
material respect when made or deemed made pursuant to Section 4.02;




     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Section 5.02, 5.03 (with respect to the Borrower’s existence) or 5.08 or in
Article VI;




     (e) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in this Agreement (other than those specified in clause (a), (b) or (d) of this
Article), and such failure shall continue unremedied for a period of 15 days after written
notice thereof from the Administrative Agent to the Borrower (which notice will be given at
the request of any Lender);




     (f) the Borrower or any Subsidiary shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness, when and as
the same shall become due and payable;




     (g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or
any Subsidiary or its debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, and, in any such case, 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;




     (i) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate
manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for
or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, (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 or
(vi) take any action for the purpose of effecting any of the foregoing;




     (j) the Borrower or any Subsidiary shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;









 



48



     (k) one or more judgments for the payment of money in an aggregate amount in excess of
$500,000 shall be rendered against the Borrower, any Subsidiary or any combination thereof
and the same shall remain undischarged 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 attach or levy upon any assets of the Borrower or any Subsidiary to
enforce any such judgment;




     (l) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other ERISA Events that have occurred, would reasonably be
expected to result in a Material Adverse Effect;




     (m) a Change in Control shall occur; or




     (o) The NewVectors Acquisition shall be unwound, reversed or otherwise rescinded in
whole or in any material part for any reason.


then, and in every such event (other than an event with respect to the Borrower described in clause
(h) or (i) of this Article), 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 the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower
described in clause (h) or (i) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby
waived by the Borrower.




ARTICLE VIII




The Administrative Agent




          Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms hereof, together
with such actions and powers as are reasonably incidental thereto.




          The bank serving as the Administrative 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 the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or







 



49




exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby that the Administrative Agent is required to exercise in writing as directed by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of the Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not 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 9.02) or in the
absence of its own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv)
the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV
or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to
the Administrative Agent.




          The Administrative 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 the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts 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 experts.




          The Administrative 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 the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative 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 Administrative
Agent.




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Bank and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, in consultation with the Borrower, to appoint a successor. If no successor shall have been
so appointed by the Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Administrative Agent.
Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such
successor shall succeed to and become vested with all the rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent’s resignation hereunder,
the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents







 



50




and their respective Related Parties in respect of any actions taken or omitted to be taken by any
of them while it was acting as Administrative Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative 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 the Administrative
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 related agreement or any document furnished hereunder or thereunder.




          In its capacity, the Administrative Agent is a “representative” of the Lenders within the
meaning of the term “secured party” as defined in the UCC. Each Lender authorizes the
Administrative Agent to enter into each of the Collateral Documents to which it is a party and to
take all action contemplated by such documents. Each Lender agrees that no Lender (other than the
Administrative Agent) shall have the right individually to seek to realize upon the security
granted by any Collateral Document, it being understood and agreed that such rights and remedies
may be exercised solely by the Administrative Agent for the benefit of the Lenders upon the terms
of the Collateral Documents. In the event that any Collateral is hereafter pledged by any Person as
collateral security for the Secured Obligations, the Administrative Agent is hereby authorized, and
hereby granted a power of attorney, to execute and deliver on behalf of the Lenders any Loan
Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of the
Administrative Agent on behalf of the Lenders. The Lenders hereby authorize the Administrative
Agent, at its option and in its discretion, to release any Lien granted to or held by the
Administrative Agent upon any Collateral (i) as described in Section 9.02(c); (ii) as permitted by,
but only in accordance with, the terms of the applicable Loan Document; or (iii) if approved,
authorized or ratified in writing by the Required Lenders, unless such release is required to be
approved by all of the Lenders hereunder. Upon request by the Administrative Agent at any time, the
Lenders will confirm in writing the Administrative Agent’s authority to release particular types or
items of Collateral pursuant hereto.




          The Administrative Agent shall have no obligation whatsoever to any of the Lenders to assure
that the Collateral exists or is owned by the Loan Parties or is cared for, protected, or insured
or has been encumbered, or that the Liens granted to the Administrative Agent therein have been
properly or sufficiently or lawfully created, perfected, protected, or enforced or are entitled to
any particular priority, or to exercise at all or in any particular manner or under any duty of
care, disclosure, or fidelity, or to continue exercising, any of the rights, authorities, and
powers granted or available to the Administrative Agent pursuant to any of the Loan Documents, it
being understood and agreed that in respect of the Collateral, or any act, omission, or event
related thereto, the Administrative Agent may act in any manner it may deem appropriate, in its
sole discretion given the Administrative Agent’s own interest in the Collateral in its capacity as
one of the Lenders and that the Administrative Agent shall have no other duty or liability
whatsoever to any Lender as to any of the foregoing.




          Each Lender hereby appoints each other Lender as its agent for the purpose of perfecting
Liens, for the benefit of the Administrative Agent and the Lenders, in assets which, in accordance
with Article 9 of the UCC or any other applicable law can be perfected only by possession. Should
any Lender (other than the Administrative Agent) obtain possession of any such Collateral, such
Lender shall notify the Administrative Agent thereof, and, promptly upon the Administrative Agent’s
request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with
such Collateral in accordance with the Administrative Agent’s instructions.





 









 





51




          Each Lender hereby agrees as follows: (a) such Lender is deemed to have requested that
the Administrative Agent furnish such Lender, promptly after it becomes available, a copy of each
Report (the “Reports”) prepared by or on behalf of the Administrative Agent; (b) such Lender
expressly agrees and acknowledges that neither the Administrative Agent nor any Related Party (i)
makes any representation or warranty, express or implied, as to the completeness or accuracy of any
Report or any of the information contained therein, or (ii) shall be liable for any information
contained in any Report; (c) such Lender expressly agrees and acknowledges that the Reports are not
comprehensive audits or examinations, that the Administrative Agent, any of its Related Parties or
any other party performing any audit or examination will inspect only specific information
regarding the Loan Parties and will rely significantly upon the Loan Parties’ books and records, as
well as on representations of the Loan Parties’ personnel and that the Administrative Agent and its
Related Parties undertake no obligation to update, correct or supplement the Reports; (d) such
Lender agrees to keep all Reports confidential and strictly for its internal use, not share the
Report with any Loan Party and not to distribute any Report to any other Person except as otherwise
permitted pursuant to this Agreement; and (e) without limiting the generality of any other
indemnification provision contained in this Agreement, such Lender agrees (i) that neither the
Administrative Agent nor any of its Related Parties shall be liable to such Lender or any other
Person receiving a copy of the Report for any inaccuracy or omission contained in or relating to a
Report, (ii) to conduct its own due diligence investigation and make credit decisions with respect
to the Loan Parties based on such documents as such Lender deems appropriate without any reliance
on the Reports or on the Administrative Agent or any of its Related Parties, (iii) to hold the
Administrative Agent and any such other Person preparing a Report harmless from any action the
indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any
Report in connection with any Credit Extensions that the indemnifying Lender has made or may make
to the Loan Parties, or the indemnifying Lender’s participation in, or the indemnifying Lender’s
purchase of, any Obligations and (iv) to pay and protect, and indemnify, defend, and hold the
Administrative Agent and any such other Person preparing a Report harmless from and against, the
claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable
attorney fees) incurred by the Administrative Agent and any such other Person preparing a Report as
the direct or indirect result of any third parties who might obtain all or part of any Report
through the indemnifying Lender.




          The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to
the Loan Parties on their behalf the Collateral Documents and all related agreements, documents or
instruments as shall be necessary or appropriate to effect the purposes of the Collateral
Documents.




          The Lenders hereby empower and authorize the Administrative Agent to execute and deliver to
the Loan Parties on their behalf any agreements, documents or instruments as shall be necessary or
appropriate to effect any releases or subordinations of Collateral which shall be permitted by the
terms hereof or of any other Loan Document or which shall otherwise have been approved by the
Required Lenders in writing.




ARTICLE IX




Miscellaneous




          SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all 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:










 



52





     (i) if to the Borrower, to it at 27335 W. Eleven Mile Road, Southfield, Michigan 48034,
Attention: Marc J. Lichtman (Telecopy No. (248) 356-0840; Telephone No. (248) 213-3697);




     (ii) if to the Administrative Agent, Issuing Bank or Swingline Lender, to JPMorgan
Chase Bank, N.A., 611 Woodward Avenue, Detroit, Michigan 48226, Attention: Dennis Camilleri
(Telecopy No. (313) 256-0347; Telephone No. (313) 256-2258); and




     (iii) if to any other Lender, to it at its address (or telecopy number) set forth in
its Administrative Questionnaire.



          (b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent; provided
that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it; provided that approval of such procedures may
be limited to particular notices or communications.




          (c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. 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.




          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, the Issuing Bank or any Lender in exercising any right or power hereunder 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
the Administrative Agent, the Issuing Bank and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section, 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 the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Borrower and the Required
Lenders or by the Borrower and the Administrative Agent with the 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, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder, without the











 



53



written
consent of each Lender affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest thereon, or any fees payable
hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled
date of expiration of any Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of the provisions of
this Section or the definition of “Required Lenders” or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or
modify any rights hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender, (vi) release all or substantially all of the Guarantors from their
obligation under the Loan Guaranties (except as otherwise permitted herein or in the other Loan
Documents), without the written consent of each Lender, or (vii) except as provided in clause (c)
of this Section or in any Collateral Document, release all or substantially all of the Collateral,
without the written consent of each Lender; provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the
Issuing Bank or the Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be.




          (c) The Lenders hereby irrevocably authorize the Administrative Agent to, and the
Administrative Agent hereby agrees with the Borrower that it shall (so long as no Event of Default
has occurred and is continuing), release any Liens granted to the Administrative Agent by the Loan
Parties on any Collateral (i) upon the termination of the Commitments, payment and satisfaction in
full in cash of all Secured Obligations, and the cash collateralization of all Letters of Credit in
a manner satisfactory to the Administrative Agent, (ii) constituting property being sold or
disposed of if the Borrower certifies to the Administrative Agent that the sale or disposition is
made in compliance with the terms of this Agreement (and the Administrative Agent may rely
conclusively on any such certificate, without further inquiry), (iii) constituting property leased
to the Borrower or any Subsidiary under a lease which has expired or been terminated in a
transaction permitted under this Agreement, or (iv) as required to effect any sale or other
disposition of such Collateral in connection with any exercise of remedies of the Administrative
Agent and the Lenders pursuant to Article VII. Any such release shall not in any manner discharge,
affect, or impair the Secured Obligations or any Liens (other than those expressly being released)
upon (or obligations of the Loan Parties in respect of) all interests retained by the Loan Parties,
including the proceeds of any sale, all of which shall continue to constitute part of the
Collateral and the Administrative Agent shall not be required to execute any such release on terms
which, in the Administrative Agent’s reasonable opinion, would expose the Administrative Agent to
liability or create any obligation or entail any consequence other than the release of such Liens
without recourse or warranty.




          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates,
including the reasonable fees, charges and disbursements of counsel for the Administrative Agent,
in connection with the syndication of the credit facilities provided for herein, the preparation
and administration of this Agreement or any amendments, modifications or waivers of the provisions
hereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by the Administrative Agent, the Issuing Bank or any
Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent,
the Issuing Bank or any Lender, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section, or in connection with the
Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.




          (b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being called an
“Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement
or instrument contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the
consummation of the Transactions or any other transactions contemplated hereby, (ii) any Loan or
Letter










 



54



of Credit or the use of the proceeds therefrom (including any refusal by the Issuing Bank to
honor a demand for payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property owned or operated by the
Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of the Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; 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 from the gross negligence or
willful misconduct of such Indemnitee.




          (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the
Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, the Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against the
Administrative Agent, the Issuing Bank or the Swingline Lender in its capacity as such.




          (d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.




          (e) All amounts due under this Section shall be payable promptly after written demand
therefor.




          SECTION 9.04. 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 (i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and assigns permitted
hereby (including any Affiliate of the Issuing Bank that issues any Letter of Credit), Participants
(to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees 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) with the prior
written consent (such consent not to be unreasonably withheld) of:





          (A) the Borrower, provided that no consent of the Borrower shall be required
for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if an Event of
Default
has occurred and is continuing, any other assignee;









 



55



          (B) the Administrative Agent, and




          (C) the Issuing Bank.



          (ii) Assignments shall be subject to the following additional conditions:





          (A) except in the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of
any Class, 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 $5,000,000
unless each of the Borrower and the Administrative Agent otherwise consent, provided
that no such consent of the Borrower shall be required if an Event of Default has occurred
and is continuing;




          (B) 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, provided
that this clause 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; 




          (C) 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; and




          (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more Credit
Contacts to whom all syndicate-level information (which may contain material non-public
information about the Loan Parties and their related parties or their respective securities)
will be made available and who may receive such information in accordance with the
assignee’s compliance procedures and applicable laws, including Federal and state securities
laws.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the following
meaning:




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




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, 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, 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 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.










 



56




          (iv) The Administrative Agent, acting for this purpose as an agent of the 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, and the 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 the Borrower, the Issuing Bank and any Lender, at any
reasonable time and from time to time upon reasonable prior notice.




          (v) 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) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.




          (c)(i) Any Lender may, without the consent of the Borrower, the Administrative Agent, the
Issuing Bank or the Swingline Lender, 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 (A) such Lender’s obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the 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 this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 9.08 as though
it were a Lender, provided such Participant agrees to be subject to Section 2.17(c) as though it
were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion









 





57


of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section 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.




          SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement 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 Administrative Agent, 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 2.14, 2.15, 2.16 and 9.03
and Article VIII shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this Agreement or any provision
hereof.




          SECTION 9.06. 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 and any separate letter agreements with respect to fees payable to the
Administrative Agent 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. Except as provided in Section 4.01, 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 9.07. 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 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is 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 the Borrower against
any of and all the obligations of the 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 are in addition to other rights and remedies (including other rights of setoff) which such
Lender may have.




          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a) This









 



58

Agreement shall be construed in accordance with and governed by the law of the State of Michigan
without regard to conflict of laws.




          (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any federal or state court of the State of Michigan, and any
appellate court from any thereof, in any action or proceeding arising out of or relating to this
Agreement, 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 be heard and determined in such 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 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 against the Borrower or its properties
in the courts of any jurisdiction.




          (c) The Borrower 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 in any court
referred to in paragraph (b) of this Section. 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 the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.10. 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 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.




          SECTION 9.11. 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 9.12. Confidentiality. (a) 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 (i) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (ii) to the extent
requested by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi)
subject to an










 



59



agreement containing provisions substantially the same as those of this Section, to
(A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (B) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its obligations, (vii)
with the consent of the Borrower or (viii) to the extent such Information (A) becomes publicly
available other than as a result of a breach of this Section or (B) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis from a source other
than the Borrower. For the purposes of this Section, “Information” means all information
received from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.




          (b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.




          (c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER
OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE LOAN
PARTIES AND THEIR RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER
REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS
ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL
NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.




     SECTION 9.13. Several Obligations; Nonreliance; Violation of Law. The respective
obligations of the Lenders hereunder are several and not joint and the failure of any Lender to
make any Loan or perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. Each Lender hereby represents that it is not relying on or
looking to any margin stock for the repayment of the Borrowings provided for herein. Anything
contained in this Agreement to the contrary notwithstanding, neither the Issuing Bank nor any
Lender shall be obligated to extend credit to the Borrower in violation of any Requirement of Law.



     SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”) hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower, which information
includes the name and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.









 



60


     SECTION 9.15. 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 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 9.16. Disclosure. The Borrower and each Lender hereby acknowledges and agrees
that the Administrative Agent and/or its Affiliates from time to time may hold investments in, make
other loans to or have other relationships with any of the Borrower, the Subsidiaries and their
respective Affiliates.



     SECTION 9.17. Appointment for Perfection. Each Lender hereby appoints each other
Lender as its agent for the purpose of perfecting Liens, for the benefit of the Administrative
Agent and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other
applicable law can be perfected only by possession. Should any Lender (other than the
Administrative Agent) obtain possession of any such Collateral, such Lender shall notify the
Administrative Agent thereof, and, promptly upon the Administrative Agent’s request therefor shall
deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in
accordance with the Administrative Agent’s instructions.


[Signature Pages Follow]










 



61




          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.




	 	 	 	 	 	 	 
	 	 	TECHTEAM GLOBAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Marc J. Lichtman
 

Name: Marc J. Lichtman

Title: Vice President, Chief Financial Officer
and Treasurer
	 	 
	 
	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., individually and as

Administrative Agent,	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Dennis Camilleri	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Dennis Camilleri	 	 
	 

	 	 	 	Title: Senior Banker	 	 







 









 





EXHIBIT A




ASSIGNMENT AND ASSUMPTION




     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 	 	 
	1.

	 	Assignor:
	 	                                                            
	 
	 	 	 	 
	2.

	 	Assignee:
	 	                                                            
	 

	 	 	 	[and is an Affiliate/Approved Fund of [identify Lender]2]
	 
	 	 	 	 
	3.

	 	Borrower(s):
	 	                                                            
	 
	 	 	 	 
	4.

	 	Administrative Agent:
	 	JPMorgan Chase Bank, N.A., as the administrative agent under the
Credit Agreement
	 
	 	 	 	 
	5.

	 	Credit Agreement:
	 	The Credit Agreement dated as of May ___, 2007 among TechTeam Global, Inc., the Lenders parties
thereto, JPMorgan Chase Bank, N.A., as the Administrative Agent








 




			
	2	 	Select as applicable.




 









 











	6.	 	Assigned Interest:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	Amount of	 	 
	 	 	Commitment/Loans	 	Commitment/Loans	 	Percentage Assigned of
	Facility Assigned	 	for all Lenders	 	Assigned	 	Commitment/Loans3
	 

	 	$	 	 	 	$	 	 	 	%	 	 
	 

	 	$	 	 	 	$	 	 	 	%	 	 
	 

	 	$	 	 	 	$	 	 	 	%	 	 





Effective
Date:                      ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the Borrower, the Loan
Parties and their Related Parties or their respective securities) will be made available and who
may receive such information in accordance with the Assignee’s compliance procedures and applicable
laws, including Federal and state securities laws.



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 	 	 
	 	 	ASSIGNOR	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 








 




			
	3	 	Set forth, to at least 9 decimals, as a
percentage of the Commitment/Loans of all Lenders thereunder.




2









 









[Consented to and]4 Accepted:




[NAME OF ADMINISTRATIVE AGENT], as
 Administrative
Agent




	 	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 
	 	 	 	 
	[Consented to:]5	 	 
	 
	 	 	 	 
	[NAME OF RELEVANT PARTY]	 	 
	 
	 	 	 	 
	By
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 








 




			
	4	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	5	 	To be added only if the consent of the
Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required
by the terms of the Credit Agreement.




3









 










ANNEX 1




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION




     1. Representations and Warranties.



     1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of the Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of the
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.



     1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.



     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and



 









 







Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with,
the law of the State of Michigan.