Page 233



(b)(4)
(b\(4)

Page 63

subsection (a) the term "Relevant Exposure" means, (i) with
respect to any Loss arising as a result of events occurring
prior to the date on which the Senior Term Loans shall have
been paid in full, the amount of the Senior Term Loans then
held by such Lender and (ii) with respect to any Loss
arising as a result of events occurring after the date on
which the Senior Term Loans shall have been paid in full,
the amount of the Revenue Performance Obligations then held

by such Lender.

(b) Each Bank holding obligations that are
secured or guaranteed under any Collateral Document shall
indemnify the Collateral Agent under such Collateral
Document (to the extent not reimbursed by the Borrower)
ratably in accordance with the then outstanding principal
amount of such Bank's Senior Term Loans which are secured or
guaranteed under such Collateral Document, against any cost,
expense (including counsel fees and disbursements), claim,
demand, action, loss or liability (except such as result
from such Collateral Agent's gross negligence or willful
misconduct) that such Collateral Agent may suffer or incur
in connection with such Collateral Decument or any action
taken or omitted by such Collateral Agent thereunder. Each
Bank holding obligations that are or were secured or
guaranteed under the Original Director Guarantees 41
Original Director Security Documents shall indemnity] (b)(4)
as Collateral Agent thereunder (to the extend not reimburse
by the Borrower), ratably in accordance with the outstanding
amount of such Bank's obligations so guaranteed or secured;
against any cost, expense (including counsel fees and
disbursement), claims, deman action, loss or liability
(except suchas result from gross negligence or
willful misconduct) tha’ y Suffer or incur in
connection with any Original Director Guarantee or iginal
Director Security Document, or any action taken oyL Bs (b)(4)

Collateral Agent thereunder.

SECTION 7.07. Credit Decision. Each Lender
acknowledges that it has, independently and without reliance
upon the Agent, any Collateral 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 and the Original Loan Agreement .
Each Lender also acknowledges that it will, independently
and without reliance upon the Agent, any Collateral Agent or
any other Lender, and based on such documents and
information ag it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not
taking any action under this Agreement or any Collateral

Document .

SECTION 7.08. Successor Agent and Collateral
Agents. The Agent or any Collateral Agent may resign at any

55


Page 127

EXHIBIT G

March __, 1993

The Other Lenders and the Agent
Referred to Below

(b)(4)

Bain & Company, Inc.
2 Copley Place
Boston, MA 02116

Dear Sirs:

I am a Senior Counsel of Recoll Management

Corporation. I am rendering this opinion as counsel to

Recoll Management Corporation, as attorney-in-fact for the

Federal Deposit Insurance Corporation, as Receiver for New

Bank of New England, N.A. ("Recoll") in connection with the

Amended and Restated Loan Agreement dated as of March 31,

1993 (the "Loan Agreement") among Bain & Company, Inc., 4

Massachusetts corporation (the *Company"), Recoll, the other

lenders listed on the signature maces thereof and b
(b)(4) TE _fas Agent. I am (b)(4)

Yendering this opinion pursuant to Section 2.03(1) of the

Loan Agreement. Terms defined in the Loan Agreement are

used herein as therein defined.

In connection with this opinion, I have made such
investigation as I deemed appropriate in the circumstance
and I have received and examined certificates of Recoll
relative to the matters hereinafter set forth, on which I
have relied for purposes of this opinion.

Upon the basis of the foregoing, I am of the
opinion that: {A) Recoll's participation in the
restructuring provided for in the Loan Agreement and the
other documents contemplated therein to be executed have
been duly authorized by all necessary action of Recoll and
the Federal Deposit Insurance Corporation, as Receiver for
New Bank of New England, N.A. and, assuming due execution
and delivery of the Loan Agreement by all other parties


Page 29

(f) The representations and warranties of the
Borrower contained in this Agreement shall be true and
correct in all material respects on the Effective Date
as if made on and as of the Effective Date.

(g) The Agent shall have received a certificate
signed by the treasurer of the Borrower, dated the
Effective Date, to the effect set forth in subsections
{e) and (£) above. The Borrower shall be deemed to
have made a representation and warranty to the effect
set forth in subsections (e) and (£) above on the
Effective Date.

(h) The Agent shall have received sufficient
copies for distribution to each Lender of all documents
it may reasonably request relating to (i) the existence
of the Borrower and its Subsidiaries; (ii) the
corporate authority for and the validity of this
Agreement, the Senior Term _Nates the Revenue

erformance Certificates, ]
the ESOP II Amended Security Agreement and
(yea) Jand (iii) an
y other
yelevant matters, all in form and substance
satisfactory to the Agent.

(b)(4)

(i) Each Lender shall have received its Senior
Term Note and Revenue Performance Certificate, duly
executed and dated the date hereof and complying with
the requirements of Section 3.06.

(j) The Agent shall have received (addressed to
and with sufficient copies for each Lender) an opinion
of Ropes & Gray, counsel to the Borrower, dated the
Effective Date and substantially in the form of Exhibit
E.

(k) The Agent shall have received (addressed to
and with sufficient copies for each Lender) an opinion
of Davis Polk & Wardwell, counsel to the Agent,
substantially in the form of Exhibit F.

{l) The Agent and the Borrower shall have
received (addressed to and with sufficient copies for
each Lender and the Company) an opinion of counsel to
Recoll, substantially in the form of Exhibit G.

(m) Each of the Borrower's Subsidiaries that is a
party to a Subsidiary Guarantee and Security Agreement
shall have executed a consent in form and substance
satisfactory to the Relevant Consent Lenders consenting
to the changed references in the Subsidiary Guarantee
and Security Agreements contemplated by Section
2.02(c).

21


Page 158



Page 153



(b)(4)

(b\(4)

Page 2

INDEX

DOCUMENTS DELIVERED. BY AGENTS:

Loan Agreement (with exhibits)

Second Amended and Restated
ESOP II Security Agreement

Consent regarding Subsidiary
Guarantee and Security Agreement

DOCUMENTS DELIVERED BY BORROWER:

Copies of executed Senior Term
Notes payable to the Lenders
and Landlord

Copies of executed Revenue
Performance Certificates
payable to the Lenders and Landlord

Long-form certificate of the
Secretary of State of Massachusetts

dated as of March 25, 1993, as to the

Borrowers's good standing and tax
status and listing all charter
documents of the Borrower

Certificate of Secretary of
the Borrower

Base Projections (Loan
Agreement - 4.04(f)

Assurance that key officers
of Borrower intend to continue
in existing capacity with Borrower

Certificate of Treasurer

of Borrower as to (i) accuracy
of representations and warranties
and (ii) no default under Loan
Agreement

ITEM NO.

1

10

11

12


(iii)

(iv)

(v)

(vi)

Page 123

if certain tangible Collateral ia moved to a state in
which a financing statement has not been filed or if
the Borrower's location changes to a state or, in
states where a local filing is required, to-.another
county or city, in which a financing statement has not
been filed, Section 9-103 and Section 9~401(3), as the
case may be, of the Uniform commercial Cede require
that a new appropriate financing statement be filed in
such new state, county er city, as the case may be,
within four months after such move to continue
perfection of the security interest;

under certain circumstances deseribed in Section 9-306
of the Uniform Commercial Code, the rights of a secured

party to enforce a perfected security interest in
proceeds of collateral may be limited;

under certain circumstances described in Sections 9-307
and 9-308 of the Uniform Commercial Code, purchasers of
collateral may take the same free of a perfected
security interest; and

Section 552 of the Bankruptcy Code limits the extent to
which property acquired by a debtor after the
commencement of a case under the Bankruptcy Code may be
gaubject to a lien resulting from any security agreement
antered into by the debtor before the commencement of

the case.

In addition, we call your attention to the fact that the
opinions exprassed herein do not purport to cover, and we express

no opinion with respect to,

the applicability of Section 548 of

the Bankruptcy Code or any comparable provision of state law.

The foregoing opinion is solely for your benefit and may not
be relied on by any person other than you and your counsel in
rendering its opinion with respect to the Loan Agreement.

CIBOPINZ. BC

Very truly yours,

Ropes & Gray


Page 72

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.

BAIN & COMPANY, INC.

By /s/ Colin Anderson
Title: Treasurer

2 Copley Place

Boston, MA 02116

Attention: Treasurer
Facsimile Number:617-572-3266

(b\(4)

(b)(4),(b)
Py ©)
Title: Vice President
(b)(4)
(b)(4)
(b)(4),(b)
*Y (6)

Title: Vice President

(b)(4)

64


Page 238

BAIN & COMPANY, INC.

Certificate of Treasurer

I, COLIN F. ANDERSON, Treasurer of Bain & Company, Inc., a
Massachusetts corporation (the "Borrower"), DO HEREBY CERTIFY in
my capacity as such Treasurer as follows:

1. No Default has occurred or is continuing under the
amended and Restated Loan Agreement dated as of March 31, 1993

(the "Loan Agreement") among the—Borrcusr the lenders Lictad on
(b)(4) i ture pages thereof and
(b)(4) as Agent, or the Original Loan Agreement on the date
er ry

(b)(4).(0)
(6)

2. The representations and warranties of the Borrower
contained in the Loan Agreement are true and correct in all
material respects on the date hereof.

Terms defined in the Loan Agreement and not otherwise
defined herein are used herein with the meanings so defined.

IN WITNESS WHEREOF, I have hereunto set my hand.

Dated: “March 31, 1993.

Colin F. Anderson Co oo

CIBTRECE BC


Page 156



()(4)
Page 83



Page 19

or supply funds for the purchase or payment of} such Debt or
other obligation, (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other
manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided that the
term Guarantee shall not include endorsements for collection
or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.

“Ineremental Revenue" means, for each Fiscal Year,
Revenue in excess of the amount set forth for such Fiscal
Year in the table below:

Fiscal Year Amount,
(in millions)

1994 (b)(4)

1995
1996
1997
1998
1999
2000

2001

"Incremental Revenue Basket" has the meaning set
forth in Section 3.04(c).

"Incremental Revenue Payment" has the meaning set
forth in Section 3.04(b).

"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended, or any successor statute.

"Investment" means any investment in any Person,

whether by means of share purchase, capital contribution,
loan, time deposit or otherwise.

il


Page 234



Page 201

Revenue Performance Certificate (cont *d)

REVENUE PERFORMANCE OBLIGATION AMOUNT AND PAYMENTS

Amount of

Revenue Amount of
Performance Obligation Notation
Obligation Repaid Made By

gv
Go



Page 132

(b)(4)

EXHIBIT K



Page 138

EXHIBIT O

FOREIGN BANKS

(b)(4)



{Bi}

(b)(4)
(b)(4)

(b)(4)
(b)(4)

Page 193

SENIOR TERM NOTE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., 4

Massachusetts corporation (the "Borrower" )} promises to nav
on March 31, 2001 to the order of

~ (the _"Lender") the Senior Term Loan
aving a principal amount of The Borrower
promises to pay interest on principal amount of
such Senior Term Loan on the dat@ and at the rate or rates
provided for in the Loan Riere All such payments of

principal and interest shall bs de in lawful money of the
United States in Federal or oth immediately available

funds at the office of

All prepayments of the principal thereof shall be
recorded by the Lender and, prior to any transfer hereof,
appropriate notations to evidence the foregoing information
with respect to such Senior Term Loan then outstanding shall
be endorsed by the Lender on the schedule attached hereto,
or.on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan
Agreement.

This note is one of the Senior Term Notes referred
to in the Amended and Restated Loan Agreement dated as of

March 31, 1993 among the Bor isted on the
i pages thereof and
as Agent (as the Way be amended from time to
7 /*Loan Agreement"). Terms defined in the Loan

Agreement are uged herein with the same meanings. The
Borrower shall prepay the principal amount hereof as and to
the extent provided in the Loan Agreement. Reference is

(b)(4)


Page 182

provisions for the accelera-

x
BAIN & COMPANYS NC.

made to the Loan Agreement for
tion of the maturity hereof.

(b)(4).(b)
(6)
By
[reas urer


Page 78

made to the Loan Agreement for provisions for the accelera-
tion of the maturity hereof.

BAIN & COMPANY, INC.

By

Title:


(b)(4)

Page 36

Performance Certificates without deduction or withholding of
any United States federal income taxes or, in the case of
Form 4224, that payments under this Agreement, the Revenue
Performance Certificates and the Senior Term Notes are
effectively connected with the conduct of such Lender's
trade or business in the United States. Hach Lender which
delivers or has delivered a Form 1001 or 4224 further
undertakes to deliver to each of the Borrower and the Agent
two additional copies of such form (or a successor form) on
or before the date that such form expires or becomes
obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may
be reasonably requested by the Borrower or the Agent,
certifying, in the case of Form 1001, that such Lender is
entitled to receive payments under this Agreement, the
Senior Term Notes and the Revenue Performance Certificates
without deduction or withholding of any United States
federal income taxes or, in the case of Form 4224, that
payments under this Agreement, the Revenue Performance
Certificates and the Senior Term Notes are effectively
connected with the conduct of such Lender's trade or
business in the United States, unless (i) such Lender
determines that such form or amendment will impose on such
Lender a material burden or cost or (ii) an event (including
without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly
completing and delivering any such form with respect to it
‘and such Lender advises the Borrower and the Agent that it
ig not capable of receiving payments without any deduction
or withholding of United States federal income tax.

SECTION 3.09. Taxes. (a) If any withholding
deduction from any payment to be made by the Borrower to
hereunder, under any Senior Term Note, under any Revenue
Performance Certificate or under the Original Loan Agreement
igs required pursuant to any applicable law, rule or
regulation, in respect of any present or future taxes,
levies, imposts, deductions, withholdings, charges or
liabilities with respect thereto of any nature whatsoever
imposed by any taxing authority (whether pursuant to United
States Federal, state or local law or foreian law),
excluding taxes imposed on or measured by net income,
the Borrower will

(i) pay to the relevant authority the full amount
required to be so withheld or deducted;

(ii) promptly forward to the Agent and! an
official receipt or other documentation satisfactory to
levidencing such payment to such authority; and

28

(b)(4)

(b)(4)

(b)(4)


(b)(4)

(b)(4)

(b)(4)

VOTED:

VOTED:

VOTED:

CIBSECCE BC

Page 228

EXHIBIT C

ERHipis

BAIN & COMPANY, INC.

votes of the Financing Committee
of the Board of Directors

That there are hereby approved the form and terms and
provisions of the Amended and Restated Loan Agreement
dated as of March 31, 1993 (the "Loan Agreement"),
including all exhibits and schedules thereto, a draft
of which dated March @3, 1993 has been presented to the
members of this Committee, among this Corporation, the
Lenders listed on the signature pages of the Loan
Agreement (the "zenders") an

Ee as agents(the “Agency? ana
rurtner

That the President, the Treasurer or any Assistant
Treasurer of this corporation be, and they and each of
them, acting alone, hereby is, authorized and
empowered, in the name and on behalf of this
corporation, to execute and deliver (i) the Loan
Agreement and (ii) the Senior Term Notes, the Revenue

ance Certificates, L
and the ESOP IT Amended Security Agreemer
(as suc erms are defined in the Loan Agreement), in

substantially the respective forms thereof presented to
the members of this Committee and each and every other
instrument and document the execution and delivery of
which in the name and on behalf of this Corporation is
therein contemplated, with such changes therein, if
any, as the officer executing the same may approve,
such approval to be conclusively evidenced by such

execution; and further

That the President, the Treasurer and any Assistant
Treasurer of this Corporation be, and they and each of
them, acting alone, hereby is, authorized and empowered
in the name and on behalf of this Corporation, to
execute and deliver to the Lenders Senior Term Notes
and Revenue Performance certificates evidencing the
indebtedness under the Loan Agreement, and all other
documents and instruments approved in the foregoing
votes and from time to time to execute and deliver such
other and further instruments, and do and perform such
acts and things as any of them, in his discretion, may
deem necessary or advisable in connection with the Loan
Agreement, the
ESOP II Amended Security Agreement, the Senior Term

(b)(4)

(b\(4)


Page 107

change its principal place of business, principal executive
office or place where it keeps its Books and Records from
the location specified in Section 3.02 uniess it notifies
the Collateral Agent at least 30 days prior to such change
(making specific reference to this Section) and makes all
filings required by this Agreement and takes all other
action necessary or that the Collateral Agent may reasonably
request to maintain the perfection and priority of the
Security Interests. The Borrower will not in any event
change the location of any Collateral if such change would
cause the Security Interests in such Collateral to lapse or
cease to be perfected.

SECTION 4.04. Change of Name. The Borrower will
not change its name, identity or corporate structure in any
manner which might make any financing or continuation state-
ment filed hereunder seriously misleading within the meaning
of Section 9-402(7) of the UCC (or any other applicable
provision of the UCC) unless the Borrower shall have given
the Collateral Agent at least 30 days’ prior written notice
thereof (making specific reference to this Section) and
shall have taken all action necessary or reasonably reques-
ted by the Collateral Agent to maintain the perfection and
priority of the Security Interests in the Collateral.

SECTION 4.05. Change in Law. The Borrower will
promptly notify the Collateral Agent in writing of any
change in law known to it (and will use its reasonable
efforts to become aware of any such change in law) which (i)
adversely affects or will adversely affect the validity,
perfection or priority of the Security Interests or (11)
requires or will require a change in the procedures to be
followed in order to maintain and protect the validity,
perfection and priority of the Security Interests.


Page 43

reagonable detail the calculation and application of
the Excess Bonus Amount pursuant to Section 5.11(d);

(e) simultaneously with the delivery of each set
of quarterly financial statements referred to in clause
(b) of this Section, a projection for each of the next
twelve months (based on management estimates) of
income, cash flow, balance sheet items, severance
costs, Officer Bonuses, consulting compensation, vice
president and director base compensation and costs of
vice president and director fringe benefits, all
prepared on a basis and in a format consistent with the
Base Projections;

(£) as soon as available and in any event within
35 days after the end of each month, (i) financial
statements containing the line items and in the format
get forth in Exhibit Q and (ii) a certificate of the
chief financial officer of the Borrower setting forth
in reasonable detail the calculations required to
establish whether the Borrower complied with the
requirements of Section 5.04 at the end of such month;

(g) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) above, a certificate of the chief financial officer
of the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the
Borrower complied with the requirements of Sections
5.02 to 5.13, inclusive, on the date of such financial
statements, and (ii) stating whether any Default exists
on the date of such certificate and, if any Default
then exists, setting forth the details thereof and the
action which the Borrower is taking or proposes to take
with respect thereto;

(h) simultaneously with the delivery of each set
of financial statements referred to in clause (a)
above, a statement of the firm of independent public
accountants which reported on such statements (x)
whether anything has come to their attention to cause
them to believe that any Default existed on the date of
such statements and (y) confirming the calculations set
forth in the officer's certificate delivered
simultaneously therewith pursuant to clauses (da) (ii)

and (g) above;

(i) within five days after any officer of the
Borrower obtains knowledge of any Default, if such
Default is then continuing, a certificate of the chief
financial officer of the Borrower setting forth the
details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;

35


(b)(4)

(b)(4)

(b)(4).(b)
(6)

(b)(4).(0)
(6)

Page 250

Each of the Persons on the
Attached Distribution List
March 3i, 1993

Page 2

Performance Obligations owed to it only if, among other things,
in the year it seeks to deduct such amount, it has entered into a
settlement or other similar agreement with the borrower

(including a settlement or agreement to write off 100% of the

debt) with respect to such debt reduction.
L~ jis insisting upon this revision only so that after

September 30, 2001 it may write off the outstanding amount of the
Revenue Performance Obligations owed to it and receive the

appropriate tax deduction.

March 3j_, 1993

Title: Vice President ¢ Group bode:

(b)(4).(b)
(6)


(b)(4)

(b)(4)
(b)(4)

(b)(4)

Page 168

ARTICLE V

PROCEEDS ACCOUNT

SECTION 5.01. Proceeds Account. Within 30 days
after the Effective Date, the Borrower shall designate in
writing to the Collateral Agent the title, number and
location of a cash proceeds account (the "Proceeds
Account"), which shall at_all times be maintained at the

bank provided for in the

On the date of designation, the Proceeds Account wilt Nov
contain any funds other than cash proceeds of the Accounts.
The Borrower shall as promptly as possible deposit or cause
to be deposited into the Proceeds Account all cash proceeds
thereafter received by it in respect of any Account. Until
so deposited, such cash proceeds ghall not be commingled
with any other funds or property of the Borrower. The
Borrower shall not cause or permit any funds (including
interest paid on funds held in the Proceeds Account) other
than cash proceeds of the Accounts to be deposited into the
Proceeds Account or otherwise commingled with cash proceeds
of the Accounts held in the Proceeds Account. All right,
title and interest in and to the amounts on deposit from
time to time in the Proceeds Account shall constitute part
of the Collateral hereunder.

SECTION 5.02. Payments; Withdrawals from Proceeds

Account. The Borrower will make all Investments (other than
Investments permitted by Section 5.03), disbursements and
other payments, whether made in the ordinary course of
business or otherwise, from funds held in an account or
accounts other than the Proceeds Account (the "Operating
Accounts"). The Borrower will maintain the Operating

Recounts in accordance with

SECTION 5.03. Investment of Funds Depo ited in
Proceeds Account. The Borrower may from time to time invest
amounts on deposit in the Proceeds Account in Temporary Cash
Investments; provided that such Temporary Cash Investments
are subject to pledge under applicable state law and United
States Treasury regulations and, in the opinion of counsel
to the Collateral Agent, appropriate measures shall have
been taken to perfect the Security Interests therein and all
proceeds thereof (subject in right of priority to anv
security interest granted therein pursuant to the

The Borrower and the Collat~

eral Agent will use their Dest efforts to promptly take all
action necessary to establish and to effectuate their
respective rights and interests in such Temporary Cash

(62 /2h/27008/021/SEC.93/esopl 1

(b)(4)


(b\(4)

(b)(4)

Page 68

(y) for consideration exceeding 40% of the outstanding
principal amount plus accrued and unpaid interest of any

Subordinated Obligations so repaid, prepaid, repurchased or
acquired or (vii) amend Section 5.06(a) (iii).

(b) (x) Until the Senior Term Loans shall have
been paid in full,"Relevant Consent Lenders" shall mean
Lenders holding more than 50% of the sum of the aggregate
outstanding principal amount of the Senior Term Loans;

provided that:

(i) with respect to any amendment of , or waiver
or consent relating to, Section 6.01(e), Section
6.01(£), Section 6.01(}) or Sections 5.02 to 5.24,
inclusive, or any related definition, "Relevant consent
Lenders" shall mean Lenders holding more than 62% of
the sum of the aggregate outstanding principal amount
of the Senior Term Loans;

(ii) with respect to any amendment of, waiver or
consent relatina ta ar action taken by the Collateral

Agent under
"Relevant Consent Lenders" shall mean

holding more than 50% in aggregate
principal amount of the Continuing| {except
to the expent thar a higher percentage may be required

under the Security Agreement) ;

(iii) with respect to any amendment of, waiver or
consent relating to or action taken by the Collateral
Agent under the ESOP II Amended Security Agreement,
“Relevant Congent Lenders" shall mean BSOP II Banks
holding more than 50% in aggregate outstanding
principal amount of the Continuing ESOP II Loans
(except to the extent that a higher percentage may be
required under the ESOP II Amended Security Agreement) ;

(iv) with respect to any amendment of, waiver or
consent relating to or action taken by the Collateral
Agent under the Borrower Pledge and Security Agreement
or the Subsidiary Guarantee and Security Agreements,
"Relevant Consent Lenders" means Banks holding more
than 50% in aggregate outstanding principal amount of
the Senior Term Loans held by the Banks, except that
with respect to Section 5(G) of the Borrower Pledge and
Security Agreement, "Relevant Consent Lenders" shall
mean Banks holding more than 62% of the aggregate
principal amount of the Senior Term Loans held by the
Banks (except to the extent that a higher percentage
may be required under the relevant subsidiary Guarantee
and Security Agreement or the Borrower Pledge and
Security Agreement) ;

60

(b)(4)
(b)4)


Page 207

Revenue Performance Certificate (cont'd)

REVENUE PERFORMANCE OBLIGATION AMOUNT AND PAYMENTS

Amount of

Revenue Amount of
Performance Obligation Notation
Obligation Repaid Made By

ro

oy



Page 152



Page 39

the consolidated financial position of the Borrower and its
Consolidated Subsidiaries at December 31, 1992 and their
consolidated results of operations, changes in shareholders’
equity and cash flows for such periods (subject to normal
year-end adjustments).

{c) Except as disclosed in writing to the Lenders
before the date hereof, there has been no material adverse
change since December 31, 1992 in the business, financial
position, results of operations or prospects of the Borrower
and its Consolidated Subsidiaries.

(a) Exhibit H hereto lists all Debt of the
Borrower and its Consolidated Subsidiaries to be outstanding
immediately after the Effective Date, other than Debt to be
outstanding under this Agreement.

(e) Exhibit I hereto lists all Investments (other
than investments in Subsidiaries and Temporary Cash
Investments) to be held by the Borrower and its Consolidated
Subsidiaries immediately after the Effective Date.

(f) The Base Projections represent the best
estimates of management of the Borrower of the various line
items for the periods set forth t°erein, in each case for
the periods or dates presented ir he Base Projections, and
the Base Projections are based upon assumptions which
management of the Borrower believes to be reasonable.

SECTION 4.05. Litigation. Except as set forth in
Exhibit J, there is no action, suit or proceeding pending
against, or to the knowledge of the Borrower threatened
against or affecting, the Borrower, any of its Subsidiaries,
or the Restructured ESOP before any court or arbitrator or
any governmental body, agency or official in which there is
a reasonable possibility of an adverse decision which (i)
could materially adversely affect the business, consolidated
financial position or consolidated results of operations of
the Borrower and its Consolidated Subsidiaries, (ii) could
adversely affect the status of the Restructured ESOP as set
forth in Section 4.09 or (iii) in any manner draws into
question the validity of this Agreement, any Collateral
Document or any of the transactions contemplated hereby or
thereby.

SECTION 4.06. Compliance with ERISA. Each member

of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue
Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions
of ERISA and the Internal Revenue Code with respect to each
Plan. No member of the ERISA Group has (i) sought a waiver
of the minimum funding standard under Section 412 of the

31


Page 71

court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this Agreement or
the transactions contemplated hereby. The Borrower
irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a
court and any claim that any such proceeding brought in such
a court has been brought in an inconvenient forum.

SECTION 8.08. Counterparts; Integration. This
Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement
and understanding among the parties hereto and supersedes
any and all prior agreements and understandings, oral or
written, relating to the subject matter hereof.

SECTION 8.09. Confidential Information. Each
Lender will use its best efforts to maintain strictly
confidential the financial and other confidential or
proprietary information concerning the business of the
Borrower and its Subsidiaries heretofore or hereafter
furnished to such Lender, restricting any disclosure to
disclosure te such Lender's counsel, accountants and other
professional advisors and to that required to be disclosed
(i) to examining, regulatory or other governmental agencies,
(ii) in response to subpoena or other legal process or in
connection with litigation to which such Lender is a party,
(iii) to a Participant or Assignee or proposed Participant
er Assignee so long as such Person agrees to accept such
information subject to the restrictions in this Section
8.09, (iv) in connection with any Event of Default and any
collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom with respect to this
Agreement or any Collateral Document and (v) otherwise as
may be required by law.

SECTION 8.10. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER, THE AGENT AND THE LENDERS HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.

63


Page 194

made to th
tion of the maturity hereof.

By

@ Loan Agreement for provisions for the accele

BAIN & com, INC.

ran

Title:
[reas

(b)(4).()
(6)
(b)(4).()
(6)


Page 200

Reference is made to the Loan Agreement for

same meanings.
eof and the acceleration of

provisions for the prepayment her
the maturity hereof.

BAIN & company a>.

(b)(4).(b)(6)
By.
Title “Trea Furey GX)



(b\(4)

(b)(4)
(b)(4)

(b)(4)

Page 108

ARTICLE V

PROCEEDS ACCOUNT

SECTION 5.01. Proceeds Account. Within 30 days
after the Effective Date, the Borrower shall designate in
writing to the Collateral Agent the title, number and
location of a cash proceeds account (the "Proceeds
Account"), which shall a all times be maintained at the

bank provided for in the

On the date of designation, the Proceeds Account will not
contain any funds other than cash proceeds of the Accounts.
The Borrower shall as promptly as possible deposit or cause
to be deposited into the Proceeds Account all cash proceeds
thereafter received by it in respect of any Account. Until
so deposited, such cash proceeds shall not be commingled
with any other funds or property of the Borrower. The
Borrower shall not cause or permit any funds (including
interest paid on funds held in the Proceeds Account) other
than cash proceeds of the Accounts to be deposited into the
Proceeds Account or otherwise commingled with cash proceeds
of the Accounts held in the Proceeds Account. All right,
title and interest in and to the amounts on deposit from
time to time in the Proceeds Account shall constitute part
of the Collateral hereunder.

SECTION 5.02. Payments; Withdrawals from Proceeds
Account. The Borrower will make all Investments (other than
Investments permitted by Section 5.03), disbursements and
other payments, whether made in the ordinary course of
business or otherwise, from funds held in an account or
accounts other than the Proceeds Account (the "Operating
Accounts"). The Borrower will maintain the Operating
Accounts in accordance with

SECTION 5.03. Investment of Funds Deposited in
Proceeds Account. The Borrower may from time to time invest
amounts on deposit in the Proceeds Account in Temporary Cash
Investments; provided that such Temporary Cash Investments
are subject to pledge under applicable state law and United
States Treasury regulations and, in the opinion of counsel
to the Collateral Agent, appropriate measures shall have
been taken to perfect the Security Interests therein and all
proceeds thereof (subject in right_of priority to any
security interest granted therein

The Borrower and the Collat=

eral Agent will use their best efforts to promptly take all
action necessary to establish and to effectuate their
respective rights and interests in such Temporary Cash
Investments. All right, title and interest in and to the
Temporary Cash Investments from time to time made pursuant

8

(b)(4)


Page 171

the Collateral Agent seize and remove such Collateral
from such premises.

(b) The Collateral Agent may, without demand of
performance or other demand, advertisement or notice of
any kind (except the notice specified below of the time
and place or any public or private saie) to or upon the
Borrower or any other Person (all of which demands,
advertisements and/or notices are hereby waived by the
Borrower), (i) apply cash, if any, then held by the
Collateral Agent as Collateral as specified in Section
6.04 and (ii) collect, receive, appropriate and realize
upon the Collateral or any part thereof and/or sell,
assign, give an option or options to purchase or other-
wise dispose of and deliver the Collateral (or contract
to do so) or any part thereof in one or more parcels at
public or private sale, at any office of the Collateral
Agent or elsewhere in such manner as the Collateral
Agent may deem best, for cash or on credit or for
future delivery without assumption of any eredit risk.
The Collateral Agent or any ESOP II Bank shall have the
right upon any such public sale, and, to the extent
permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so
sold, free of any right or equity or redemption in the
Borrower, which right or equity is hereby expressly
waived and released. The Borrower further agrees, at
the Collateral Agent's request, to execute any docu-
ments and take any other actions necessary or appro~-
priate to permit the Collateral Agent to take posses-
sion and control of the Proceeds Account and the funds
therein and to collect any Books and Records, and to
make such Books and Records available to the Collateral
Agent at places which the Collateral Agent shall rea-
sonably select. To the extent permitted by applicable
law, the Borrower waives all claims, damages and
demands against the Collateral Agent or the ESOP IT
Banks arising out of the foreclosure, repossession,
retention or sale of the Collateral. The Borrower
agrees that the Collateral Agent need not give more
than ten days' notice (which notification shall be
deemed given when mailed, postage prepaid, addressed to
the Borrower at its address specified in Section 7.06
of the time and place of any public sale or of the time
after which a private sale may take place and that such
notice is reasonable notification of such matters.

(c) The Collateral Agent (i) shall have the right
and power to institute and maintain such suits and
proceedings as it may deem appropriate to protect and
enforce the rights vested in it by this Agreement and

/d2/2h/27008/021/SEC.93/esopl!
il


Page 130

EXHIBITI

(b)(4)



(b)(4)

(b)(4)
(b)(4)

Page 49

liability for vental payments under any operating lease or
capital lease if such incurrance or assumption would cause
the aggregate amount of all future payments which the
Borrower and its Consolidated Subsidiaries are then
obligated to make under all operating and capital leases to
exceed the “Permitted Lease Amount" applicable to the Fiscal
Year in which liability under such operating or capital
lease is incurred or assumed. The "Permitted Lease Amount"
shall mean (i) $10,700,000 for Fiscal 1994 and (ii) for each
Fiscal Year thereafter, $10,700,000 increased by a
percentage equal to the cumulative percentage change in the
Consumer Price Index for ali urban consumers in the United
States as reported by the United States Department of Labor
from March 31, 1993 to the end of the immediately preceding
Fiscal Year.

SECTION 5.10. Investments. Neither the Borrower
nor any Consolidated Subsidiary will make or acquire any
Investment in any Person after the date hereof other than:

(a) Investments in Persons i
on the date hereof; provided tha

\Sune 14,199

net of nts or distributions received by the
Borrower] aaveare after June 14, 1991)
ghall no 2 qreqate of $250,000, and (ii
whether
made of acquired betore or artter tne dare Trereof, shall
not exceed an aggregate of $100,000 and neither the
Borrower nor any other Subsidiary shall Guarantee or

otherwise become contingently liable for any
obligations of any Fund Advisory Subsidiary;

(b) Investments in Wholly-Owned Consolidated
Subsidiaries created after the date hereof not
exceeding an aggregate amount of $500,000 in any Fiscal
Year;

(c) Temporary Cash Investments;

(ad) forward currency contracts entered into
consistently with past practice and not for purposes of
speculation;

(e) Investments in bank time deposits which are
made and maintained in connection with Debt of
Subsidiaries to such banks permitted to be incurred by
clause (iii) of Section 5.07;

(£) equity investments received as payment of
fees for services rendered in an aggregate amount for
each Fiscal Year not exceeding 5% of Revenue for the
immediately preceding Fiscal Year;

41


()(4)
Page 91



Page 12

‘Bain U.K." means Bain United Kingdom, Inc., a
corporation organized under the laws of the United Kingdom,
and its successors.

"Bain U.K., Inc. Pension Plan" means the Bain
United Kingdom, Inc. Pension Plan, as in effect on the date
hereof.

"Bankruptcy Event of Default" means an Event of
Default specified in Section 6.01(g) or 6.01(h) with respect
to the Borrower.

"Banks" means reco1i, [OM in its
capacity as a Lender hereunder, each Assignee of a Bank
pursuant to Section 8.06(c), and their respective
successors.

"Base Projections" means the financial projections
of the Borrower dated March 16, 1993 and delivered to the
Lenders prior to the Effective Date.

"Benefit Arrangement" means at any time an
employee benefit plan within the meaning of Section 3(3) of
ERISA which is not a Plan or a Multiemployer Plan and which
ig maintained or otherwise contributed to by any member of
the ERISA Group.

"Borrower" means Bain & Company, Inc., a
Massachusetts corporation, and its successors.

"Borrower Pledge and Security Agreement" means the
Borrower Pledge and Security Agreement dated as of June 10,
1991 between the Borrower and|(b)(4) as collateral agent,
as such Borrower Pledge and Security Agreement may be
amended from time to time.

"Business Day” means any day except a Saturday,
Sunday or other day on which commercial banks in New York
City are authorized by law to close.

"Capital Expenditures" means, for any period, the
consolidated capital expenditures of the Borrower and its
Consolidated Subsidiaries for such period.

‘Cash Flow" means, for any Fiscal Year, the
consolidated net income of the Borrower and its Consolidated
Subsidiaries for such Fiscal Year (i) plus (in each case to
the extent deducted in calculating such consolidated net
income) depreciation and amortization expenses, ESOP
Expenses, Foreign Plan Expenses, Subordinated Deferred
Compensation, interest not paid in cash in such Fiscal Year,
non-cash phantom note and phantom portfolio expense and

4


Page 5

TABLE OF CONTENTS

ARTICLE I
DEFINITIONS

SECTION 1.91 Definitions .. - ++ +s: 5
SECTION 1.02 Accounting Terms and Definitions

ARTICLE II
RESTRUCTURING

SECTION 2.01 Effectiveness of This Agreement .
2.02 Restructuring of Obligations on the
Effective Date ..: - A .

2.03 Conditions to Effectiveness
2.04 Original Director Guarantees -

ARTICLE IIft
TERMS OF RESTRUCTURED OBLIGATIONS

SECTION 3.01 Interest Rates - + - ss sett
3.02 Computation of Interest .- + ++
3.03 Maturity; Mandatory and Optional

Prepayments .. +--+ +s *
3.04 Incremental Revenue. - + - - - + =
3,05 Application of Incremental Revenue

Payments and Optional

Prepayments .- +--+ se sect
3.06 Notes and Certificates .- +++ +
3.07 General Provisions as to

Payments .. +--+: 7° :
3.08 Withholding Tax Exemption... + +>
3.09 Taxes . eee

ARTICLE IV
REPRESENTATIONS AND WARRANTIES

SECTION 4.01 Corporate Rxistence and Power. -- +
4.02 Corporate and Governmental
Authorization; No Contravention .

4.03 Binding Bffect .---- ssc?
4.04 Financial Information .. + +--+ +
4.05 Litigation 2. +e eee er rt
4.06 Compliance with BRISA. - + ee ee

4.07 Taxes. eee ee eee tt te le
4.08 Subsidiaries, Affiliates and Related
Parties... s+ + +e ee tet

(b)(4)


Page 154



(b\(4)

Page 46

SECTION 5.04. Minimum Revenue. On the last day
of each month ending after March 31, 1993, Revenue for the
twelve months then ended shall not be less than the amount
specified in the table below for the Fiscal Year in which
such month falls:

Fiscal Minimum
Y ear Revenue

1994

(b)(4)

1935
1996
1997
1998
1999
2000

2001

SECTION 5.05. Capital Expenditures. Capital
Expenditures for any Fiscal Year (excluding Capital
Expenditures made from the Incremental Revenue Basket as
permitted by Section 3.04(c)) shall not exceed (x) in the
case of Fiscal 1994, $4,000,000 and (y) in the case of each
subsequent Fiscal Year, 2% of Revenue for the immediately
preceding Fiscal Year.

SECTION 5.06. Restricted Payments. (a) Neither
the Borrower nor any Subsidiary shall declare or make any
Restricted Payment other than (i) payments with respect to,
or measured by reference to shares of, the Borrower's
4 ich are required under the terms of the
las in effect immediately after the
Effective Date, which payments are made in compliance with
subsection (b) below and are not prohibited by or in excess
of any restriction imposed by any provision of applicable
law, (ii) payments with respect to the Borrower's capital
stock which are required under the terms of the Foreign
Plans in effect on the date hereof and are not prohibited or
restricted by any provision of applicable law,

(iii) payments with respect to deemed transfers of the
Borrower's capital stock made pursuant to the Borrower's
certificate of incorporation as in effect on the date hereof
which are made in the form of an unsecured promissory note
maturing after September 30, 2001, which is subordinated on

38


(b)(4)

(b\(4)

Page 165

wal_are junior toa th curity interests granted under the

SECTION 2.02. Continuing Liability of the Bor-
rower. Anything herein to the contrary notwithstanding, the
Borrower shall remain liable to observe and perform all the
terms and conditions to be observed and performed by it
under any contract, agreement, warranty or other obligation
with respect to the Collateral, all in accordance with and
pursuant to the terms and provisions thereof, and shall,
except as permitted by Section 5.13 of the Loan Agreement,
do nothing to impair the Security Interests. None of the
Secured Parties shall have any obligation or liability under
any such contract, agreement, warranty or obligation by
reason of or arising out of this Agreement nor shall any of
the Secured Parties be required or obligated in any manner
to make any payment with respect thereto or to perform any
obligation of the Borrower thereunder.

SECTION 2.03. Termination of Security Interests:
Release of Collateral. Upon payment in full of all the
Secured Obligations, the Security Interests shall terminate

and all rights of the Collateral Agent and the other Secured
Parties to the Collateral shall revert (subject to thi

if then in effect) to the

OrLrOWwer . time to time prior to such
termination of the Security Interests, the Collateral Agent
on behalf of the Secured Parties may release any of the
Collateral with the unanimous prior written consent of the
ESOP II Banks. Upon any such termination of the Security
Interests or any permitted release of Collateral, the
Collateral Agent will, at the Borrower's expense, execute
and deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral.

ARTICLE IIT

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants that:

SECTION 3.01. Perfection and Priority of Security
Interests. Financing statements with respect to the Colla-
teral have been filed in the office of the Secretary of the
Commonwealth of Massachusetts and the City Clerk of the City
of Boston. The Secured Parties have a valid and (except
with respect to non-cash proceeds of Accounts existing on
the date hereof) perfected security interest in all of the

412 /2h/27008/021/SEC .93/esopi 1

(b)(4)


(b\(4)

(b)(4)
(b\(4)

Page 77

EXHIBIT A

SENIOR TERM NOTE

New York, New York

,

For value received, Bain & Company, Inc., a
Massachusetts corporation (the "Borrower"), promises to pay
on to the order of

(the "Lender") the Senior Term Loan having a principal
amount of $ _. The Borrower promises to pay interest
on the unpaid principal amount of such Senior Term Loan on
the dates and at the rate or rates provided for in the Loan
Agreement. All such payments of principal and interest
shall be made in lawful money of the United States in
Federal or other immediately available funds at the office

All prepayments of the principal thereof shall be
recorded by the Lender and, prior to any transfer hereof,
appropriate notations to evidence the foregoing information
with respect to such Senior Term Loan then outstanding shall
be endorsed by the Lender on the schedule attached hereto,
or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement .

This note is one of the Senior Term Notes referred
to in the Amended and Restated Loan Agreement dated as of

March __, 1993 among the Bo rs listed on the
sicnature pages thereof and|

as Agent (as the same may be amended from time to

time, the "Loan Agreement"). Terms defined in the Loan
Agreement are used herein with the same meanings. The
Borrower shall prepay the principal amount hereof as and to
the extent provided in the Loan Agreement. Reference is

(b)(4)


()(4)
Page 86



(b)(4)

Page 1

Obligor Name 40
Obligor 4 MEET tom

Obligation #
Section /Tab >

2G
Officer /Ext_ ER DoT

He He He ee te Se Be Ne Se ete te Sete He Hee Be eM He EERE EERE RRR RE

AMENDED AND RESTATED
LOAN AGREEMENT
among
BAIN & COMPANY, INC.,

THE LENDERS REFERRED TO HEREIN

and

as Agent
dated as of

March 31, 1993

Fe FH He He HMR LR ERK E TREE EERE EEE RHEE EEE eK


Page 112

(a) Upon the filing of a bill in equity or other
commencement of judicial proceedings to enforce the
rights of the Collateral Agent under this Agreement,
the Collateral Agent shall, to the extent permitted by
applicable law, without notice to the Borrower or any
party claiming through it, without regard to the sol-
vency or insolvency at the time of any Person then
jiable for the payment of any of the Secured Obliga-
tions, without regard to the then value of the Colla-
teral and without requiring any bond from any complai-
nant in such proceedings, be entitled as a matter of
right to the appointment of a receiver or receivers
(who may be the Collateral Agent) of the Collateral, or
any part thereof, and of the profits, revenues and
other income thereof, pending such proceedings, with
such powers as the court making such appointment shall
confer, and to the entry of an order directing that the
profits, revenues and other income of the property
constituting the whole or any part of the Collateral be
segregated, sequestered and impounded for the benefit
of the Secured Parties, and the Borrower irrevocably
consents to the appointment of such receiver or
receivers and to the entry of such order; provided
that, notwithstanding the appointment ef any receiver,
the Collateral Agent shall be entitled to retain
possession and control of all cash and instruments held
by or deposited with it pursuant to this Agreement.
Notwithstanding the foregoing, if the Collateral Agent
shall take possession of any Books and Records, it
shall make such Books and Records available to the
Borrower for inspection and copying as often as the
Borrower may reasonably request.

SECTION 6.03. Waiver and Estoppel, (a) The
Borrower agrees, to the extent it may lawfully do so, that
it will not at any time in any manner whatsoever claim or
take the benefit or advantage of any appraisal, valuation,
stay, extension, moratorium, turnover or redemption law, or
any law permitting it to direct the order in which the
Collateral shall be sold, now or at any time hereafter in
force, which may delay, prevent or otherwise affect the
performance or enforcement of this Agreement and hereby
waives all benefit or advantage of all such laws. The
Borrower covenants that it will not hinder, delay or impede
the execution of any power granted to the Agent in the Loan
Agreement or t6 the Collateral Agent in this Agreement.

(b) The Borrower, to the extent it may lawfully
do so, on behalf of itself and all who may claim through or
under it, including without limitation any and all subse-
quent creditors, vendees, assignees and lienors, waives and
releases all rights to demand or to have any marshalling of

12


Page 186

Senior Term Note (cont'd)

SENIOR TERM LOAN AMOUNT AND PREPAYMENTS OF PRINCIPAL

Amount of
Amount of Principal Notagion
Senior Term Loan Prepaid tag By
fans
Ss



Page 135

EXHIBIT N
ASSIGNMENT AGREEMENT
AGREEMENT dated as of ot among
[ASSIGNOR] (the "Assignor"), [ASSIGNEE] (the "Assignee") ,
BAIN &£ CO INC. (the "Borrower") and ].(&\(4)

(b)(4) las Agent (the "Agent"T.

WHEREAS, this Assignment Agreement (the
"aAgreement") relates to the Amended and Restated Loan
Agreement dated as of March 31, 1993 among the Borrower, the
Assignor and the other Lenders party thereto, as Lenders,
and the Agent (the "Loan Agreement");

WHEREAS, (designate Senior Term Loan or Revenue
Performance Obligation] held by the Assignor under the Loan
Agreement in the aggregate [principal] amount of $
is outstanding at the date hereof; and

WHEREAS, the Assignor proposes to assign to the
Assignee all of the rights of the Assignor under the Loan
Agreement in respect of a portion of its [designate Senior
Term Loan or Revenue Performance Obligation] thereunder in
an amount equal to $ {the "Assigned Amount"), and
the Assignee proposes to accept assignment of such rights
and assume the corresponding obligations from the Assignor

on such terms;

NOW, THEREFORE, in consideration of the foregoing
and the mutual agreements contained herein, the parties
hereto agree as follows:

SECTION 1. Definitions. All capitalized terms not
otherwise defined herein shall have the respective meanings
set forth in the Loan Agreement.

SECTION 2. Assignment. The Assignor hereby
assigns and sells to the Assignee all of the rights of the
Assignor under the Loan Agreement with respect to [designate
Senior Term Loan or Revenue Performance Obligation] to the
extent of the Assigned Amount, and the Assignee hereby
accepts such assignment from the Assignor and assumes all of


(b\(4)

Page 163

“Account Debtor" means, with respect to any
Account, any Person obligated to make payment thereunder,
including without limitation any account debtor on such
Account.

"Books and Records" means, as to any Account, all
pooks, ledgers and records and all computer programs, tapes,
discs, punch cards, data processing software, transactions
files, master files and related property and rights (except
computer and peripheral equipment) necessary or helpful in
enforcing, identifying or establishing the amount of such
Account, identifying the Account Debtor, or identifying or
establishing the amount of any proceeds of such Account.

"Collateral" has the meaning set forth in Section
2.01.

"Collateral Agent" means

jin its capacity as Collateral Agent

under this Agreement, and any successor in such capacity.

"Foreclosure Event” means any acceleration of the
maturity of the Senior Term Loans included in the Continuing
ESOP II Loans pursuant to the Loan Agreement or any
Bankruptcy Event of Default.

“Loan Exposure" means, at any time with respect to
any ESOP II Bank, the aggregate outstanding principal amount
of its Senior Term Loans included in the Continuing ESOP IT
Loans and all unpaid interest accrued thereon (including
deferred interest and interest accrued thereon).

"Operating Accounts" has the meaning set forth in
Section 5.02.

"Partial Payment" has the meaning set forth in
Section 6,04.

"Proceeds Account" has the meaning set forth in
Section 5.01.

"Secured Obligations" means the obligations of the
Borrower to pay (i) all principal of and interest (including
without limitation any interest which accrues after any
Bankruptcy Event of Default) on the Senior Term Loans
included in the Continuing ESOP II Loans, (ii) all other
amounts payable by the Borrower under the Loan Agreement
with respect to the Senior Term Loans included in the
Continuing ESOP II Loans, (iii) all amounts payable by the
Borrower hereunder and (iv) any renewals or extensions of
any of the foregoing.

#42/2h/27008/021/SEC .93/esopl i

(b)(4)


(b)(4)

Page 4

CONFORMED COPY

Peer rTTTT TT TCT TTT rr eC rece t es Se ee eee
AMENDED AND RESTATED
LOAN AGREEMENT
among
BAIN & COMPANY, INC.,

THE LENDERS REFERRED TO HEREIN

and

as Agent
dated as of

March 31, 1993

ere rrerrrrrrTrTTrrerertr rir rere. oe ee ee eee ed


Page 195

Senior Term Note (cont'd)

SENIOR TERM LOAN AMOUNT AND PREPAYMENTS OF PRINCIPAL

Amount of

Amount of Principal Notagion
Senior Term Loan Prepaid Ds By

S



Page 215

to be held. The Clerk, or, in the case of the death, absence,
incapacity or refusal of the Clerk, any other officer, shall call
a special meeting upon written application of one or more
stockholders holding at least one-tenth part in interest of the
capital stock entitled to vote at the meeting, which application
shall state the time, place and purposes of the proposed meeting.
If notice of a special meeting shall have been duly waived by
every stockholder entitled to notice thereof, personally or by
such stockholder’s attorney thereunto duly authorized, such
meeting shall be deemed to have been duly called at the request

of the stockholders.

Section 2.3 Time and Place of Meetings. All meetings of
stockholders shall be held at a suitable time at the principal

office of the corporation or at such other suitable place within
Massachusetts or, to the extent permitted by the articles of
organization, elsewhere in the united States, as shall be
selected by the Chairman of the Board of Directors in the case of
an annual meeting and, in the case of a special meeting, by the
Chairman of the Board of Directors or the applying stockholders
calling such meeting. In the event of the Chairman’s failure or
refusal to act as provided in this Section 2.3, the vice Chairman
may so act, and in the event of the vice Chairman’s failure or
refusal, any officer of the corporation other than a Vice

President may so act.

Section 2.4 Notice of Meetings. A written notice of each
meeting of stockholders containing the place, date and hour, and
the purposes for which it is to be held, shall be given by the
Chairman of the Board of Directors OF, in the case of the death,
absence, incapacity, OF refusal of the Chairman of the Board of
Directors, by the Vice Chairman of the Board of Directors, OF in
the case of the death, absence, incapacity, or refusal of the
vice Chairman by any other officer other than a Vice President,
at least seven days pefore the date of the meeting, to each
stockholder entitled to vote at the meeting and to each
stockholder who is otherwise entitled by law or by the articles
of organization or these by-laws to such notice, by leaving such
notice with the stockholder or at the stockholder’s residence or
usual place of business or by mailing it postage prepaid and
addressed to the stockholder at the stockholder’s address as it
shall appear in the stock and transfer records of the
corporation. Notice of a meeting need not be given to 4
stockholder if a written waiver of notice, executed before or
after the meeting by such stockholder or the stockholder’s
attorney thereunto duly authorized, is filed with the records of

the meeting.

Section 2.5 Quorum. The holder or holders of a majority in
interest of all stock issued, outstanding, and entitled to vote
at a meeting, present in person or represented by proxy, shall
constitute a quorum, put the majority of a lesser interest so

-2-


Page 113

the Collateral upon any sale, whether made under any power
of sale granted herein or pursuant to judicial proceedings
or under any foreclosure or any enforcement of this Agree-
ment, and consents and agrees that all of the Collateral may
at any such sale be offered and sold as an entirety.

(c) The Borrower waives, to the extent permitted
by applicable law, presentment, demand, protest and any
notice of any kind (except notices explicitly required
hereunder) in connection with this Agreement and any action
taken by the Collateral Agent with respect to the Colla-

teral.

SECTION 6.04. Application of Moneys. After the
occurrence and during the continuance of a Foreclosure
Event, any cash Collateral and the proceeds of any sale of,
or other realization upon, all or any part of the non-cash
Collateral shall be applied by the Collateral Agent in the
following order of priorities:

(i) first, to pay the expenses of such sale or
other realization, including reasonable compensation to
the Collateral Agent and its agents and counsel, and
all reasonable expenses, liabilities and advances
incurred or made by the Collateral Agent in connection
therewith, and any other unreimbursed expenses for
which the Collateral Agent is to be reimbursed pursuant
to Section 8.03 of the Loan Agreement and Section 7.05
hereof;

(ii) second, to pay to each ESOP II Bank an amount
equal to the unpaid Secured Obligations held by it and,
if such moneys shall be insufficient to pay such
Secured Obligations in full, then to pay such monies to
the ESOP IZ Banks ratably in proportion to their Loan
Exposures (until, in the case of each ESOP II Bank, its
Secured Obligations are paid in full), in which case
each ESOP II Bank shall apply the amounts received by
it pursuant to this clause (ii) first to pay the
principal of its Senior Term Loans included in the
Continuing ESOP II Loans, second, to pay the unpaid
interest accrued thereon and third, to pay any other
Secured Obligations then owing to such ESOP II Bank;
and

(iii) third, to pay any surplus then remaining to
the Borrower or its successors or assigns, or to whom-
soever may be lawfully entitled to receive the same
(including without limitation the parties secured under
the Borrower Pledge and Security Agreement) or as a
court of competent jurisdiction may direct.

13


(b\(4)

(b\(4)

(b)(4)

Page 34

in proportion to the amounts of the Revenue Performance
Obligations of such Lenders.

(ii) Second, after all of th enue Performance
Obligations of Lenders other than have been-paid in

full, to pay the_remaining Revenue Performance
Obligations—of

(iii) Third, to prepay the outstanding principal
amount of the Senior Term Loans, ratably in proportion
to the outstanding Senior Term Loans of the several
Lenders.

(b) Each optional prepayment made pursuant to
Section 3.03(f£) shall be applied as follows:

(i) First, until all of the Senior Term Loans have
been paid in full, to prepay the outstanding principal
amount of the Senior Term Loans, ratably in proportion
to the outstanding Senior Term Loans of the several

Lenders.
{ii) Second, until all of th enue Performance
obligations of Lenders other than have been-paid in

full, 9.4% to pay the Revenue Performance Obligations
of land the remaining 90.6% to pay the Revenue
Performance Obligations of the other Lenders, ratably
in proportion to the amounts of the Revenue Performance
Obligations of such Lenders.

(iii) Third, after all of the enue Performance
Obligations of Lenders other than have been paid in

full, to pay the remaining Revenue Performance
obligations of

{c) On any date on which Incremental Revenue
Payments or optional prepayments are applied to prepay
principal of the Senior Term Loans pursuant to clauses (a)
(iii) or (b) (i) above the Borrower shall prepay all interest
accrued on the principal so prepaid.

SECTION 3.06. Notes and Certificates. (a) The
Senior Term Loan of each Lender shall be evidenced by a
Senior Term Note payable to the order of such Lender in an
amount equal to the unpaid principal amount of such Lender's
Senior Term Loan.

(b) The Revenue Performance Obligation of each
Lender shall be evidenced by a Revenue Performance
Certificate payable to the order of such Lender in an amount
equal to the unpaid amount of such Lender's Revenue
Performance Obligation.

(b)(4)

(b)(4)

(b)(4)


Page 217

any stock, the number of directors may be one or more. The Board
of Directors may be enlarged by the stockholders at any meeting
of the stockholders, or by the Board of Directors by a vote of
the majority of directors then in office.

section 3.2 Flection and Term. The directors, except as
provided in Section 3.12 of this Article, shall pe elected at the
annual meeting of the stockholders. The directors, except as
provided in Section 3.13 of this Article, shall hold office until
the next annual meeting and until theix successors are chosen and
qualified. No director need be a stockholder.

Section 3.3 Powers. The business of the corporation shall
be managed by the Board of Directors, which shall have and may
exercise all the powers of the corporation except those powers
reserved to the stockholders by these by-laws, by law or by the

articles of organization.

Section 3.4 Annual Meeting. The annual meeting of the Board
of Directors shall be held immediately after and at the same
place as the annual meeting of stockholders, or any special
meeting held in lieu thereof, without the necessity of notice. If
such meeting is not then held, or if a quorum is not present, the
annual meeting of the Board of Directors shall be called in the
manner hereinafter provided for special meetings.

Section 3.5 Re ular Meetings. Regular meetings of the Board
of Directors may be held at such times and places 4s shall from
time to time be fixed by the Chairman of the Board of Directors.

Section 3.6 Special Meetings. Special meetings of the Board
of Directors may be ca le y the Chairman of the Board of
Directors, and shall be held at the time and place designated in
the notice thereof.

Section 3.7 Notices. The Chairman of the Board of Directors
of the corporation OF, in the case of the Chairman’s death,
absence, incapacity, OF refusal, the vice Chairman of the Board
of Directors, OF in the case of the vice Chairman's death,
absence, incapacity, oF refusal, any other officer other than a
vice President, shall give notice of any regular or special
meeting to each director (i) by written notice delivered in
person, OF by telegram gent to the director's business or home
address, at least twenty-four hours pefore such meeting or (ii)
by written notice mailed to the director’s last known business oF
home address at least seventy-two hours before such meeting.
Notice of 4 meeting need not be given to any director if the
director executes 4 written waiver of notice before or after the
meeting or if the director attends the meeting without protesting
either prior thereto or at its commencement the lack of notice to
the director. A notice or waiver of notice of a meeting of the
Board of Directors need not specify the purposes of the meeting.

= & io


()(4)
Page 93



Page 203

to the Loan Agreement for

game meanings. Reference is made
d@ the acceleration of

provisions for the prepayment hereof an
the maturity hereof-
g>
BAIN & COMPANY, Wey a
(b)(4).(6)(6)

By. (b)(4).(b)
TRELSe Ps gure (6)



()(4)
Page 88



(b)(4)
(b)(4)
(b\(4)

(b)(4)

Page 16

Zestated Aazsenent| |
dated December 31, 1991, as such Agreement o+

| fray be amended from time to time.

"BRISA" means the Employee Retirement Income
Security Act of 1974, as amended, or any successor statute.

"ERISA Group" means the Borrower and all members
of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common
control which, together with the Borrower, are treated as a
single employer under Section 414 of the Internal Revenue

Code.

"ESOP Cash Payments” means, for any period, cash
payments made by the Borrower or any of its Consolidated
Subsidiaries during such period with respect to the
Restructured ESOP for payments with respect to the
Borrower's capital stock.

"ESOP Expenses" means, for any period, all
expenses of the Borrower and its Consolidated Subsidiaries
accrued for such period with respect to the Restructured
ESOP.



Page 209

e@ to the Loan Agreement for

same meanings. Reference is mad
f and the acceleration of

provisions for the prepayment hereo

the maturity hereof.
>
BAIN & company Suc.
Cc

Fitle:

(b)(4).()
(6)
(b)(4).(b)
(5)

FEAF BEE



(b)(4)

Page 58

official of it or any substantial part of its property,
and such involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 30
days; or an order for relief shall be entered against
the Borrower or any Subsidiary under the federal
pankruptcy laws as now or hereafter in effect;

(i) any member of the ERISA Group shall fail to
pay when due an amount or amounts aggregating in excess
of $250,000 which it shall have become liable to pay
under Title IV of BRISA; or notice of intent to
terminate a Material Plan shall be filed under Title Iv
of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or
to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated;
or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section
4219(c) (5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more
members of the ERISA Group to incur a current payment
obligation in excess of $250,000;

(j) a judgment or order for the payment of money
in excess of $250,000 shall be rendered against the
Borrower or any Subsidiary and such judgment or order
shall continue unsatisfied and unstayed for a period of
10 days;

(k) any Person or group (as defined in Rule 13d-3
promulgated by the Securities and Exchange Commission
under the Securities Exchange Act of 1934) other than
BainCompany Partners, L.P. or a successor thereof shail
have acquired beneficial ownership (within the meaning
of such Rule) of more than 50% of the outstanding
shares of common stock of the Borrower; or

then,

and in every such event, the Agent shall, if requested

by the Relevant Default Lenders, by notice to the Borrower
declare the Senior Term Loans (together with accrued

50


Page 175

The Collateral Agent may make distributions
hereunder in cash or in kind or, on a ratable basis, in any
combination thereof.

ARTICLE VII

MISCELLANEOUS

SECTION 7.01. Amendments and Waivers. Any
provision of this Agreement may be amended or waived if, but
only if, such amendment or waiver is in writing and signed
by the Borrower and the Collateral Agent (with the consent
of the Relevant Consent Lenders); provided that no such
amendment or waiver, unless consented to by all the ESOP IT
Banks, shall release any Collateral from the Security Inter-
ests, amend Section 6.04 hereof, change the definition of
"Collateral" or "Accounts" or change the percentage of the
relevant amount, or otherwise change the number or identity
of the ESOP II Banks or any of them which shall be required
for the ESOP II Banks to take any action under this Section
or any other provision of this Agreement.

SECTION 7.02. Waivers; Non-Exclusive Remedies. No
failure on the part of the Collateral Agent to exercise, and
no delay in exercising and no course of dealing with respect
to any right under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise by the
Collateral Agent or any ESOP II Bank of any right under the
Loan Agreement or this Agreement preclude any other or
further exercise thereof or the exercise of any other right.
The remedies under this Agreement and the Loan Agreement are
cumulative and are not exclusive of any other remedies
provided by law.

SECTION 7.03. Governing Law; Submission to
Jurisdiction. This Agreement shall be construed in accor-
dance with and governed by the laws of the State of New
York, except as otherwise required by mandatory provisions
of law and except to the extent that remedies provided by
the laws of any jurisdiction other than the State of New
York are governed by the laws of such jurisdiction. The
Borrower hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District
of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions contem-
plated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of the venue of any such

#d2/2h/27008/021/SEC.93/esopll

15


Page 100



Page 189

Senior Term Note (cont'd)

SENIOR TERM LOAN AMOUNT AND PREPAYMENTS OF PRINCIPAL

Amount of
Principal
Prepaid

Amount of Notation
Made By

Senior Term Loan

<g
Sy



Page 174

Secured Obligations then owing to such ESOP IT Bank;
and

(iii) third, to pay any surplus then remaining to
the Borrower or its successors or assigns, or to whom-
soever may be lawfully entitled to receive the same
(including without limitation the parties secured under
the Borrower Pledge and Security Agreement) or as a
court of competent jurisdiction may direct.

If moneys are to be applied pursuant to clause (ii) above in
an amount that is net sufficient to pay all the Secured
Obligations in full (a "Partial Payment"), the parties
intend that the Loan Exposures of the several ESOP II Banks
shall be reduced by the application of amounts available for
distribution under the Original Director Guarantees and
Original Director Security Documents before their Loan
Exposures are calculated for purposes of allocating such
Partial Payment among the ESOP IT Banks pursuant to this
Agreement, provided that (x) the parties secured under this
Agreement shall have no right to require any Collateral
Agent or any other party entitled to the benefit of or
secured under any Original Director Guarantee or any
Original Director Security Document to take any action
thereunder and (y) such Partial Payment shall not be delayed
for more than 30 days by reason of the provisions of this
Section. Accordingly, no Partial Payment shall be made
under this Agreement prior to the earlier of (i) the date on
which all moneys to be applied to the Secured Obligations
pursuant to the Original Director Guarantees and Original
Director Security Documents have been so applied or (ii) 30
days after the Foreclosure Event giving rise to such Partial
Payment occurs. If a Partial Payment is made under this
Section 6.04 and within two years thereafter a further
payment is made with respect to the Secured Obligations
under the Original Director Guarantees or Original Director
Security Documents, the Collateral Agent at the request of
any ESOP II Bank shall recalculate the Loan Exposures of the
ESOP II Banks as if such further payment under the Original
Director Guarantees or Original Director Security Documents
had been made prior to such Partial Payment hereunder, and
each ESOP II Bank which received a proportionately greater
portion of such Partial Payment than it would have received
on the basis of the Loan Exposures as SO recalculated shall
purchase such participations in the Senior Term Loans
included in the continuing ESOP II Loans of the other ESOP
II Banks, and such other adjustments shall be made, as may
be required from time to time, so that such Partial Payment
shall be shared by the ESOP II Banks ratably in proportion
to their Loan Exposures as so recalculated.

/d2/2h/27008/021/SEC.93/esopl1

14


Page 245

Ropes & GRAY

5, No approval of or authorization or other action by any
federal or Massachusetts governmental authority is required to be
obtained by the Borrower in connection with the execution,
delivery or performance of the Restructuring Documents.

6. Except as set forth in Exhibit J to the Loan Agreement,
to our knowledge, after having made inquiry of the Borrower but
without having investigated any governmental records or court
dockets, there is no governmental action or proceeding and no
litigation pending against the Borrower or any of its
Subsidiaries in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the
pusiness, consolidated financial position or consolidated results
of operations of the Borrower and its Consolidated Subsidiaries
considered as a whole or which places in question the validity or
enforceability of, or seeks to enjoin the performance of the
terms of, any of the Restructuring Documents.

7. The Borrower is not an “investment company" within the
meaning of the Investment Company Act of 1940, as amended.

our opinions that each of the Restructuring Documents being
delivered to you today is the valida and binding obligation of the
Borrower enforceable in accordance with its terms, are subject to
(i) bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the rights and remedies of creditors and
secured parties, (ii) general principles of equity, regardless of
whether applied in proceedings in equity or at law, and
(iii) limitations on certain of the remedial provisions of each
of the Borrower Security Agreements by reason of applicable law,
although such limitations do not in our opinion make the remedies
provided for therein (taken as a whole) inadequate for the
practical realization of the benefits intended to be afforded
thereby. We express no opinion as to the existence of, or as to
the title of the Borrower to, any item of Collateral or as to the
priority or (except as set forth in paragraph 3 above) the
perfection of any security interest created by the Borrower
Security Agreements. We call your attention to the following:

(i) the effectiveness of each financing statement referred
to in paragraph 3 above terminates five years after the
date of filing unless a continuation statement is filed
prior to such termination in accordance with Section
9-403 of the Uniform Commercial Code;

(ii) Section 9-402(7) of the Uniform Commercial Code
provides that if the Borrower so changes its name,
identity or corporate structure that a filed financing
statement becomes seriously misleading, the filing is
not effective to perfect a security interest in
collateral acquired by the Borrower more than four

CIBOPINZ.BC ~4~


Page 79

Senior Term Note (cont'd)

SENIOR TERM LOAN AMOUNT AND PREPAYMENTS OF PRINCIPAL

Amount of
Amount of Principal Notation
Senior Term Loan Prepaid Made By



Page 241

under the Loan Agreement, the Senior Term Notes and the
Revenue Performance Certificates or (ii) any grant of
security to secure the foregoing obligations.

Very truly yours,

(b)(4),0)
(6)



Page 222

ARTICLE 5

Capital Stock

Section 5.1 Certificates of Stock. Each stockholder shall
be entitled to a certificate in the form approved by the Board of
Directors stating the number, class, and designation of series,
if any, of the shares held by the stockholder. Such certificate
shall be signed by the Chairman of the Board of Directors, the
President or a Vice President and by the Treasurer or an
Assistant Treasurer. Such signatures may be facsimiles if the
certificate is countersigned by a transfer agent, or by a
registrar of transfers, other than a director, officer or
employee of the corporation.

Every certificate for shares of stock subject to any
restriction on transfer pursuant to the articles of organization,
these by-laws, or any agreement to which the corporation is a
party shall have the existence of the restriction noted
conspicuously on the certificate and shall also set forth on the
face or back either the full text of the restriction or &
statement of the existence of such restriction and a statement
that the corporation will furnish a copy to the holder ef such
certificate upon written request and without charge. If the
corporation is authorized to issue more than one class or series
of stock, every certificate issued shall set forth on its face or
back either the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of
each class and series authorized to be issued or 4 statement of
the existence of such preferences, powers, qualification and
rights, and a statement that the corporation will furnish a copy
thereof to the holder of such certificate upon written request

and without charge.

Section 5.2 Transfer. Shares of stock shall be transferred
of record on the books of the corporation only upon the surrender
to the corporation or its transfer agent of the certificate
therefor properly endorsed for transfer (or accompanied by a
written assignment and power of attorney properly executed for
transfer), and only upon compliance with provisions, if any,
respecting restrictions on transfer contained in the articles of
organization, these by-laws or any agreement to which the
corporation is @ party. The corporation may require proof of the
genuineness of the signature and the capacity of the party
presenting the certificate for transfer.

Section 5.3 Interests Not_ Recognized. The corporation shall
be entitled to treat the holder of record of any share or shares

of stock as the holder in fact thereof and shall not be bound to
recognize any other claim to or interest in such share or shares
on the part of any other person except as may be otherwise

expressly provided by law.

-9-


Page 40

Internal Revenue Code in respect of any Plan, (ii) failed co
make any contribution or payment to any Plan or
Multi-employer Plan or in respect of any Benefit
Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted or could result in the
imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code or (iii)
incurred any liability under Title IV of ERISA other than a
liability to the PAGC for premiums under Section 4007 of
ERISA.

SECTION 4.07. Taxes. United States Federal
income tax returns of the Borrower and its Subsidiaries have
been closed through the Fiscal Year ended March 31, 1988.
The Borrower and its Subsidiaries have filed all United
States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid
all taxes due pursuant to such returns or pursuant to any
assessment received by the Borrower or any Subsidiary. The
charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of taxes or other
governmental charges are, in the opinion of the Borrower,
adequate.

SECTION 4.08. Subsidiaries, Affiliates and
Related P. ieg. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly
existing and in good standing under the laws of its
jurisdiction of incorporation. Bain et Compagnie is a
Societe en nom collectif duly organized, validly existing
and in good standing under the laws of France. Each of the
Borrower's Subsidiaries has all powers and material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted. Exhibit K sets forth the name, corporate or
other legal status, jurisdiction of organization, equity
capitalization, principal business activity and ownership of
each Subsidiary.

SECTION 4.09

32 (b\(4)


Page 185

made to the Loan Agreement for provisions for the accelera-
tion of the maturity hereof. RY
BAIN & courang Fe .
— :
(b)(4).(b)

(6)

t—
[reasucte


Page 224

Section 5.7 Issue of Stock. The Board of Directors may,
from time to time, issue any of the authorized capital steck of
the corporation for cash, property, services or expenses, Or aS 4
stock dividend, and on any terms permitted by law and the
articles of organization. No stock shall be issued unless the
cash, so far as due, oF the property, services or the benefit of
expenses for which it was authorized to be issued, has been
actually received by the corporation, or is in its possession as

surplus.

Section 5.8 Reserve Fund. Before payment of any dividend,
there may be set aside out of any funds of the corporation
available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, oF for equalizing dividends,
or for repairing or maintaining any property of the corporation,
or such other purpose as the directors shall think conducive to
the interest of the corporation, and the directors may modify or
abolish any such reserve in the manner in which it was created.

ARTICLE 6

Inspection of Records

The original, or attested copies of the articles of
organization, by-laws and records of all meetings of the
incorporators and stockholders, and the stock and transfer
records, which shall contain the names of all stockholders and
the record address and the amount of stock held by each, shall be
kept in The Commonwealth of Massachusetts at the principal office
of the corporation, or at an office of its transfer agent or of
the Clerk or of its resident agent. Said copies and records need
not all be kept in the same office. They shall be available at
all reasonable times to the inspection of any stockholder for any
proper purpose but not to secure 4 list of stockholders for the
purpose of selling said list or copies thereof or of using the
same for a purpose other than in the interest of the applicant,
as a stockholder, relative to the affairs of the corporation.

ARTICLE 7

Checks, Notes, Drafts and Other Instruments

Checks, notes, drafts and other instruments for the payment
of money drawn or endorsed in the name of the corporation may be
signed by any officer or officers or person or persons authorized
by the Board of Directors to sign the same. No officer or person
shall sign any such instrument as aforesaid unless authorized by

the Board of Directors to do so.


Page 52

(b\(4)

SECTION 5.13. Prohibition on Sale of Receivables.
The Borrower and its Subsidiaries will not discount or sell
any of their accounts receivable, except that the Borrower
and its Subsidiaries may, in the ordinary course of
pusiness, provide discounts to customers of up to 5% of the
face amount of accounts receivable for early payment;
provided that the aggregate amount of guch discounts
provided in any Fiscal Year shall not exceed 1% of Revenue
for the immediately preceding Fiscal Year.

SECTION 5.14. Revenue Recognition. The Borrower
will not materially alter its accounting practices with
respect to the recognition of Revenue from those set forth

in Exhibit P.

SECTION 5.15. Fiscal Year. The Borrower's Fiscal
Year shall end on March 31 of each calendar year.

SECTION 5.16. Insurance. The Borrower will
maintain and will cause each of its Subsidiaries to maintain
(either in the name of the Borrower or in such Subsidiary's
own name), with financially sound and reputable insurance
companies, (i) imsurance on all their respective properties,
(ii) professional liability insurance against claims for
damages as a result of the services performed by the
Borrower or such Subsidiary, as the case may be, and (iii)
insurance coverage against other pusiness risks, in each
case in at least such amounts and against at least such
risks (and with no greater risk retention) as are usually
insured against by companies of established repute engaged
in the same or a similar business, and will furnish to each
Lender, upon its written request, full information as to the
imsurance so carried.

SECTION 5.17. Consolidations, Mergers and Sales
of Assets. The Borrower will not (i) consolidate or merge
with or into any other Person or (ii) sell, lease or
otherwise transfer all or any substantial part of its assets
to any other Person, or (iii) permit any Subsidiary to
consolidate or merge with or into, or transfer all or any
substantial part of its assets to, any Person other than the
Borrower or another Subsidiary.

SECTION 5.18. Amendment of Restructuring
(b)(4),(b) Do n ion. The Borrower will not amend, or grant any

(6) waiver under,

44



(b)(4)

Page 121

¥ =

The execution and delivery of each of the Restructuring
ower do not, and the performance by the
Borrower of the terms thereof applicable to it will not, result
in any violation of, be in conflict with, constitute a default
under, or, to the best of our knowledge, result in the creation
of a Lien on the assets of the Borrower or any Subsidiary of the
Borrower (other than Liens in favor cf the Lenders} under, any
term or provision of: (a) the charter or bylaws of the Borrower,
(b) any federal or Massachusetts law, statute or governmental
regulation applicable to the Borrower, or (c) to our knowledge,
any license, judgment, decree, order, agreement, indenture or
other instrument applicable to the Borrower of which we have

knowledge.

4.
Decuments by the Borr

5. No approval of or authorization or other action by any
federal or Massachusetts governmental authority is required to be

crbop tee .Be <3°



Page 57

(c) the Borrower or any Subsidiary shall fail to
observe or perform any covenant or agreement contained
in this Agreement or any Collateral Document (other
than those covered by clause (a) or (b) above) for 30
days after written notice thereof has been given to the
Borrower by the Agent at the request of any Lender;

{d) any representation, warranty, certification
or statement made by the Borrower or any Subsidiary in
this Agreement or any Collateral Document or in any
certificate, financial statement or other document
delivered pursuant to this Agreement or any Collateral
Document shall prove to have been incorrect in any
material respect when made or deemed made;

{e) the Borrower or any Subsidiary shall fail to
make (i) any payment in respect of any Material Debt or
any lawful payment required under the Restructured ESOP
Documents or (ii) shall have failed to pay more than
two months’ rent under the Lease, in either case when
due or within any applicable grace period;

(£) any event or condition shall occur which
results in the acceleration of the maturity of any
Material Debt or enables (or, with the giving of notice
or lapse of time or both, would enable) the holder of
such Debt or any Person acting on such holder's behalf
to accelerate the maturity thereof;

(g) the Borrower or any Subsidiary shall commence
a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar
official of it or any substantial part of its property,
or shall consent to any such relief or to the
appointment of or taking possession by any such
official in an involuntary case or other proceeding
commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail
generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the

foregoing;

(hb) an involuntary case or other proceeding shall
be commenced against the Borrower or any Subsidiary
seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar

49


(b)(4)
yy)

(b)(4)

(b)(4)

Page 208

REVENUE PERFORMANCE CERTI FICATE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., a
Massachusetts corporation (the "Borrower"), promises tO pa
to the order of

"Len s

evenuée Perrormance uUplLigation in Tie
mount of on the dates provided for, on the
terms and subject to he conditions set forth, in the Loan
Agreement referred to below. All such payments shall be
made in lawful money of the United States in Federal or
other immediately available funds at the office of

eR

All payments made with respect to Revenue
Performance Obligation ghall be recorded by @ Lender and,
prior to any transfer hereof, appropriate tions to
evidence the foregoing information with re ct to such
Revenue Performance Obligation then outstanding shall be
endorsed by the Lender on the schedule attached hereto, or
on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement.

This certificate is one of the Revenue Performance
Certificates referred to in the Amended and Restated Loan
Agreement dated as of March 31, 4993 among the Borrower, the
lenders listed on the signature pages thereof and| sane

as Agent (as same
Oo @, the “Loan Agreement") .
a herein with the

fo
Terms defined in the Loan Agreement are use

(b\(4)

(b)(4)


Page 142

CONFORMED COPY

(b\(4)



(b\(4)

Page 53

or the Lenders or to waive any right thereunder the waiver
of which would be adverse to the Borrower or the Lenders.
The Lenders consent to the amendment to the Lease dated as
of March 31, 1993, a copy of which was provided to the

a i ta rhe Effective Date

45



Page 219

Section 3.12 Vacancies. Except as may be otherwise provided
in the articles of organization, a vacancy in the Board of
Directors, including 4 vacancy created upon enlargement of the
Board of Directors, may be filled by the Board of Directors by
the election of a successor to hold office for the unexpired term
of the director whose place is vacant or of a person to hold a
newly created place until the next meeting of stockholders and
until a successor is chosen and qualified. Any vacancy in the
Board of Directors may also be filled by the stockholders and the
person so chosen shall displace any guccessor chosen by the Board

of Directors.

Section 3.13 Removal. A director may be removed from office
with or without cause by the stockholders, provided that the
directors elected by a particular class of stockholders may be
removed with or without cause only by the stockholders of such
class. A director may be removed at any time for cause by the
vote of a majority of the directors then in office. A director
may be removed for cause only after reasonable notice and
opportunity to be heard before the body proposing to remove the

director.

Section 3.14 Resignation. Any director may at any time
resign from office by delivering a written resignation to the
Board of Directors, the President or the Clerk. Such
resignation, uniess a later time is specified therein, shail take
effect upon receipt by the addressee or at the principal office
of the corporation, and acceptance thereof shall not be necessary

to make it effective.

ARTICLE 4

Officers

Section 4.1 Desi nation and ualification. The officers of
the corporation shall consist of 4 Chief Executive Officer, 4
President, a Treasurer, a Clerk, and such other officers
including one or more Vice Presidents, Assistant Treasurers and
Assistant Clerks as may be elected. No officer need be @
stockholder or a director. The Clerk shall be a resident of The
Commonwealth of Massachusetts unless the corporation has a
resident agent appointed to accept service of process. A person
may hold more than one office, including the office of Chairman
of the Board of Directors, at the same time. Any officer may be
required by the Board of Directors to give bond for the faithful
performance of the officer's duties to the corporation in such
amount and with such sureties as the Board of Directors may

determine.

-6-


(b)(4)

(b)(4).(b)
(6)

(b)(4).(b)
(6)

Page 213

6. The following persons are, and have been at all times
since a date prior to MarchJl, 1993, duly qualified and acting
officers of the Borrower duly elected or appointed to the offices
set forth opposite their respective names, and each such person
who, as an officer of the Borrower, signed (i) the Loan
Agreement, (ii) the Senior Term Notes (as defined in the Loan

Agreement), (iii) the Revenue performance Certificates (as
i (iv) the

(4)

d in the Loan Agreement),
as defined in the Loan Agreement), (v) the ESOP If
er urity Agreement (as defined in the Loan Agreement) and

(vi) any other document delivered prior hereto or on the date
hereof in connection with the Loan Agreement, was duly elected or
appointed, qualified and acting as such officer at the respective
times of such signing and delivery, and the signatures of such
persons appearing on such documents are their genuine signatures.

Name office
Colin F. Anderson Treasurer

Gary Wilkinson Assistant Treasurer

IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the Borrower.

Dated: March 31, 1993

Wendy E.R. Hornor

I, Colin F. Anderson, Treasurer of Bain & Company, Inc.,
hereby certify in my capacity as such Treasurer that Wendy E.R.
Hornor is, and has been at all times since March 29, 1993 the
duly elected, qualified and acting Assistant Clerk of Bain &
Company, Inc. and that the signature set forth above is her true

and correct signature.

Dated: March 31, 1993

coli *

CIBSECCE BC


Page 220

Section 4.2 Election and Term. The Chief Executive Officer
and the President Shall be elected annually by the stockholders
at the annual meeting of the stockholders and shall hold office
until the next annual meeting of the stockholders and until their
respective successors are chosen and qualified. The Treasurer
and Clerk shall be elected annually by the Board of Directors at
the annual meeting of the Board of Directors and shall hold
office until the next annual meeting of the Board of Directors
and until their respective successors are chosen and qualified.
All other officers may be elected by the Board of Directors at
any time and shall hold office for such term as the Board of
Directors determine. Notwithstanding the foregoing, the initial
Chief Executive Officer of the corporation shall be W. Mitt
Romney, who shall serve until the 1993 annual meeting of the
stockholders, and until his successor is chosen and qualified.

Section 4.3 Chief Executive Officer. The Chief Executive
officer shall be the chief executive officer of the corporation,
except as the Board of Directors may otherwise provide, and shall
have general supervision and control of the business of the
corporation subject to the direction of the Board of Directors.
The Chief Executive Officer shall also have such other powers and
duties as the Board of Directors may decide. It shall be the
Chief Executive Officer’s duty, and the Chief Executive Officer
shall have the power, to see that all orders and resolutions of
the Board of Directors are carried into effect. In the absence
of a Chairman or vice Chairman of the Board of Directors, the
Chief Executive Officer shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors.
Unless otherwise directed by the Board of Directors, the Chief
Executive Officer may on behalf of the corporation vote or
consent to any action with respect to or in connection with any
interest that the corporation may hold or have in any other
corporation or in any partnership, joint venture, association,
trust, proprietorship, business entity or common undertaking
whatsoever, and may appoint any other person or persons to act as
proxy or attorney-in-fact for the corporation, with or without
power of substitution, The Board of Directors may from time to
time confer like powers upon any other officer.

Section 4.4 President and Vice President. The President
shal] have such powers and shall perform suc duties as may be
assigned to him or her by the Chief Executive Officer. The vice
president or Vice Presidents, if any, shall have such powers and
perform such duties as may be assigned to them by the Chief
Executive Officer. In the absence of the President or in the
event of his or her imability to act, the Vice President, if any,
or, if there is more than one Vice president, the First vice
President, OF, if no First Vice President has been designated,
the Vice President senior in office, shall have and may exercise
all the powers and duties of the President.

-7J-


Page 82

Revenue Performance Certificate (cont'd)

REVENUE PERFORMANCE OBLIGATION AMOUNT AND PAYMENTS

Amount of

Revenue Amount of

Performance Obligation Notation
Obligation Repaid Made By



()(4)
Page 92



(b\(4)
(b\(4)

(b)(4)

Page 47

terms acceptable to all the Lenders to the prior payment of
all amounts payable by the Borrower hereunder, (iv) payments
by the Borrower not exceeding $243,110 to repurchase shares
of the Borrower's capital stock from Bain U.K., Inc. and

(v) any Restricted Payment made from the Incremental Revenue
Basket as permitted by Section 3.04(c).

(o) If an Event of Default shall have occurred
and be continuing, the Borrower shall not make any payment

with respect to, or measured by reference to shares of, the
(Roszower scapital Hee or any contribution col ed

in each case described in Section 2.37a)
of | Agreement prior to 60 days after

delivery to the Lenders or written notice of the Borrower's
intention to make such payment and the amount thereof. The
Borrower shall not at any time make any payment with respect

to, or measured by reference to shares of, pps Roxeaues’s
anital stock described in Section 2.3(b) of

prior to 60 days after delivery of

HOtICe by Che -ESUF-Irustee to the Borrower pursuant to such
Section, copies of which the Borrower shall deliver to each
Lender within seven days of receipt. Nothing contained in
this Agreement or the Restructured ESOP Documents shall
constitute a waiver or release of any claim of any Lender as
to, or any rights any Lender may have to challenge, the
validity or enforceability of any payment by the Borrower,
or any obligation of the Borrower to make any payment, with
respect to, or measured by reference to shares of, its
capital stock allocated under the ESOP in excess of the fair
market value of such shares or to recover any amount of any
such payment; provided that the Lenders agree for the
penefit of the ESOP Trustee that the Lenders shall not
initiate any action or proceeding with respect to any such
payment or obligation to make a payment under the terms of
the Restructured ESOP if, at the time such payment shall be
made, no Event of Default specified in Section 6.01(a) shall
have occurred and be continuing hereunder.

SECTION 5.07. Restriction on Debt. Neither the
Borrower nor any Subsidiary shall incur any Debt after the
date hereof other than (i) obligations with respect to
leases permitted by Section 5.09, {ii) Debt of the Borrower
owed to a Wholly-Owned Consolidated Subsidiary, Bain et
Compagnie or Bain Link, Inc., Debt of a Wholly-Owned
Consolidated Subsidiary, Bain et Compagnie or Bain Link,
Inc. owed to the Borrower or Debt of a Wholly-Owned
Consolidated Subsidiary, Bain et Compagnie or Bain Link,
Inc. owed to another Wholly-Owned Consolidated Subsidiary,
Bain et Compagnie or Bain Link, Inc. (subject, in the case
of Bain Link, Inc., to the limitation in Section 5.10(a)),
(iii) Debt of Subsidiaries not exceeding $2,500,000 (or the
equivalent in foreign currencies) in aggregate principal
amount at any time outstanding, the proceeds of which are

39

(b)(4)

(b)(4)


Page 133

EXHIBITL

(b\(4)

diskegwa#l, doc:b:\g013


Page 117

SECTION 7.07. Multiple Counterparts. This
Agreement may be executed in a number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same

instrument.

SECTION 7.08. Successors and Assians. This
Agreement is for the benefit of the Collateral Agent and the
ESOP II Banks and their successors and assigns, and in the
event of an assignment complying with Section 8.06(c) of the
Loan Agreement of all or any of the Secured Obligations, the
rights hereunder, to the extent applicable to the indebted-
ness so assigned, shall automatically be transferred with
such indebtedness. This Agreement shall be binding on the
Borrower and its permitted successors and assigns.

SECTION 7.09. Amendment and Restatement of this
Agreement. Immediately upon the receipt by the Collateral
Agent of a counterpart hereof executed by each of the
parties listed on the signature pages hereof and without
further action by any party hereto, the First Amended and
Restated ESOP II Security Agreement shall be automatically
amended and restated to read in full as set forth herein.

SECTION 7.10. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSAC-

TIONS CONTEMPLATED HEREBY.

IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective
authorized officers ag of the day and year first above

written.

BAIN & COMPANY, INC.

By

Title: Treasurer

17


Page 126

under the Loan Agreement, the Senior Term Notes and the
Revenue Performance Certificates or (ii) any grant of
security to secure the foregoing obligations.

Very truly yours,


Page 214

EXHIBIT A

BY-LAWS
OF
BAIN & COMPANY, INC.
ARTICLE 1

Name, Location, Corporate Seal, and Fiscal Year

section 1.1 Name. The name of the corporation is Bain &
Company, Inc.

Section 1.2 Location. The principal office of the
corporation in Massachusetts shall be located at the place set
forth on the form of the articles of organization or ona
certificate filed with the State Secretary- the Board of
Directors may change the location of the principal office in
Massachusetts and establish guch other offices as it deems

appropriate.

section 1.3 Corporate Seal. The Board of Directors may
adopt and alter the form of seal of the corporation.

Section 1.4 Fiscal Year. The fiscal year of the corporation
shall, unless otherwise decided by the Board of Directors, end

March 31.

ARTICLE 2
stockholders

Section 2-1 annual Meeting. The annual meeting of the
stockholders shall be held at the date and hour fixed for such
meeting by the Chairman of the Board of Directors, provided that
the annual meeting shall be held within #ix months after the end
of the corporation’s fiscal year. The Chairman of the Board of
Directors may decide the purposes, in addition to those
prescribed by law, by the articles of organization or by these
by-laws, for which the annual meeting js to be held. If an
annual meeting ia not held as herein provided, & special meeting
in lieu of the annual meeting may be held at « later date with
all the force and effect of an annual meeting. in the event of
the Chairman's failure or refusal to act 48 provided in this
Section 2.1, the Vice Chairman may go act, and in the event of
the Vice Chairman’ failure or refusal, any officer of the
corporation other than a Vice president may so act.

Section 2.2 Special Meetings. Special meetings of the
stockholders may be called by the Chairman of the Board of

Directors, who shall state the purposes for which the meeting is


Page 131

EXHIBIT J

LITIGATION

Wee

NO PENDING PROCEEDING


Page 237

Bain & Company

Bain & Company, inc.

Two Copley Place

Gosten, Massachusetts 02117-0807
TEL 61% 572-2000

FAX 617-572-3627

March 23, 1993

Dear Bank Group Members:

You have asked whether the key members of the Bain & Company management
team will remain with the company following the closing of the debt restructuring
and payment of bonuses, It Is of course impossible 10 determine with certainty who
will stay and whe will go over time; nevertheless, following my discussion with
virtually every one of the senior vice presidents, I believe that the substantial majority
will remaain over a sufficient period of tine to continue to rebuild the company.

Of course, if the company's performance were 10 deteriorate significantly in the
future, the number of departures could increase. I recognize that a prolonged
recession could have negative impact on the company. My personal belief, however,
is that when the restructuring is completed, the firm’s prospects are excellent for
retaining its key people and for achieving long term financial stability.

Sincerely,

disksea #2, dos:b.\ca046

Boston « Crieaga « Dal « San Franeseca « Tora « Brusas « Genva + Londan + Mian + Mataow « Munch * Bane. Rome » Sydney » Tokyo


Page 226

Any rights of indemnification hereunder shall not be
exclusive, shall be in addition to any other right which a
director or officer may have or obtain, and shall accrue to such

person's estate.

Any agent or employee of or for the corporation may be
indemnified in such manner as the Board of Directors decides.

Notwithstanding the foregoing, the corporation shall not
provide indemnification (i) with respect to any claim, suit,
action or proceeding arising out of, or resulting from the
service of any director, officer, or employee as a director,
officer or employee of any. subsidiary of the corporation, OF
{ii) for any director, officer or employee who, at the time of
the occurrence giving rise to or resulting in such claim, suit,
action ox proceeding, was employed principally by any subsidiary
of the corporation; provided, that the limitations of this
paragraph shall apply only if any such subsidiary has in its
bylaws indemnification provisions gubstantially similar to the
provisions of this Article 8 (apart from this paragraph) and
further provided, that the limitations of this paragraph shall
not apply to any claim, suit, action oF proceeding arising out of
or resulting from the service of John fPheroux as a Vice President
and/or Managing Director serving in the London office of the
corporation's subsidiary, Bain United Kingdom, Inc.-, and he shall
be entitled to indemnification by the corporation as if this

paragraph did not exist.

ARTICLE 9
Amendments

These by-laws may at any time be amended by the stockholders,
provided that notice of the substance of the proposed amendment
is stated in the notice of any meeting at which such action is to
be taken on the amendment. The Board of Directors may also make,
amend or repeal these by-laws in whole or in part, except with
respect to any provision relating to indemnification or
preemptive right or any other provision thereof which by law, the
Articles of Organization, or these by-laws requires action by the
stockholders. Not later than the time of giving notice of the
meeting of stockholders next following the making, amending or
repealing by the Board of Directors of any by-laws, notice
thereof stating the substance of such change shall be given to
all stockholders entitled to vote on amending the by-laws. Any
by-law adopted, amended or repealed by the directors may be
amended, repealed or reinstated by the stockholders.

MOOV/BAIN/ADE

-~13-


Page 155



Page 159



(b)(4)

Page 3

DELIVERED BY DP&W:

Opinion of DP&W pursuant to
Section 2.03(k) of the Loan
Agreement

DELIVERED BY R&G

Opinion of R&G pursuant to
Section 2.03(j) of the Loan
Agreement

DELIVERED BY AISENBERG:

Opinion of Aisenberg pursuant
to Section 2.03(1) of the Loan
Agreement

DELIVERED BY.

Memorandum Regarding Revenue
Performance Obligations

13

14

15

16


Page 149



Page 110

(ii) to demand, sue for, collect, receive and give
acquittance for any and all monies due or to become due
upon or in connection with the Collateral;

(iii) to notify the Account Debtors of this Securi-
ty Agreement or direct the Borrower to notify the
Account Debtors of this Security Agreement and direct
them to make payment directly to the Collateral Agent;

(iv) to commence, settle, compromise, compound,
prosecute, defend or adjust any claim, suit, action or
proceeding with respect to, or in connection with, the
Collateral;

(v) to sell, transfer, assign or otherwise deal
in or with the Collateral or any part thereof, as fully
and effectually as if the Collateral Agent were the
absolute owner thereof;

(vi) to extend the time of payment of any or all
Accounts and to make any allowance and other adjust-
ments with reference thereto; and

(vii) to do, at its option but at the expense of
the Borrower, at any time or from time to time, all
acts and things which the Collateral Agent deems
necessary to protect or preserve the Collateral and to
realize upon the Collateral.

SECTION 6.02. Remedies upon Foreclosure Event.
If a Foreclosure Event shall have occurred and be continu-
ing, the Collateral Agent may exercise on behalf of the
Secured Parties (x) the rights available to a secured party
under the UCC and (y) the other rights available to the
Collateral Agent at law or equity. Without limiting the
generality of the foregoing, the Collateral Agent may, to
the extent permitted by applicable law, exercise any one or
more of the following remedies:

(a) The Collateral Agent personally or by agents
or attorneys shall have the right to take immediate
possession of the Collateral, or any portion thereof
(including any Books and Records), and for that purpose
may pursue the same wherever it may be found and enter,
with or without process of law and without breach of
the peace, any premises where any of such Collateral is
or may be located, and without charge or liability to
the Collateral Agent seize and remove such Collateral
from such premises.

(b) The Collateral Agent may, without demand of
performance or other demand, advertisement or notice of

10


Page 70

Assignment Agreement in substantially the form of Exhibit N
hereto (an "Assignment Agreement") executed by such Assignee
and such transferor Lender. Upon execution and delivery of
such Assignment Agreement, payment by such Assignee to such
transferor Lender of an amount equal to the purchase price
agreed between such transferor Lender and such Assignee, and
delivery of a copy of such Assignment to the Agent, such
Assignee shall be a Lender party to this Agreement and shall
have all the rights and obligations of a Lender holding an
amount of the Senior Term Loans and Revenue Performance
Obligations as set forth in such Assignment Agreement, and
the transferor Lender shall be released from its obligations
hereunder to a corresponding extent, and no further consent
er action by any party shall be required. Upon the
consummation of any assignment pursuant to this

subsection (c), the transferee Lender shall deliver each
applicable Senior Term Note or Revenue Performance
Certificate to the Agent, and the Borrower {at its own
expense) shall execute and deliver to the Agent a new Senior
Term Note or Revenue Performance Certificate to the order of
such transferee Lender in a principal amount equal to the
relevant principal amount assigned pursuant to such
Assignment, and if the transferor Lender has retained any
indebtedness under any such Senior Term Note or Revenue
Performance Certificate, a new Senior Term Note or Revenue
Performance Certificate to the order of the transferor
Lender in the principal amount equal toe the amount of such
indebtedness retained by it hereunder. Each new Note or
Certificate shall be dated the Effective Date and shall
otherwise be in substantially the form of the appropriate
Exhibit hereto. In connection with any such assignment, the
transferor Lender shall pay to the Agent an administrative
fee for processing such assignment in the amount of $2,000.
If the Assignee is not incorporated under the laws of the
United States of America or a state thereof (and is not an
agency of the United States of America), it shall, prior to
the first date on which interest or fees are payable
hereunder for its account, deliver to the Borrower and the
Agent certification in accordance with Section 3.08.

(a) Any Bank may at any time assign all or any
portion of its rights under this Agreement, its Senior Term
Note and its Revenue Performance Certificate to a Federal
Reserve Bank. No such assignment shall release the
transferor Bank from its obligations hereunder.

SECTION 8.07. yi i Wz i i
Jurisdiction. This Agreement, each Senior Term Note and
each Revenue Performance Certificate shall be governed by
and construed in accordance with the laws of the State of
New York. ‘The Borrower hereby submits to the nonexclusive
jurisdiction of the United States District Court for the
Southern District of New York and of any New York State

62


(b\(4)

(b\(4)

Page 56

SECTION 5.23. Meetin With Lenders. The
Borrower shall make available the Borrower's president and a
financial officer for a regular monthly meeting with the
Lenders to discuss the Borrower's affairs, finances,
operations, prospects and any other matters reasonably
requested by any Lender.

ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more

of the following events ("Events of Default") shall have
occurred and be continuing:

(a) the Borrower shall fail to pay when due any
principal of any Senior Term Loan or any amount of any
Revenue Performance Obligation, or shall fail to pay
within five days of the due date thereof any interest
on any Senior Term Loan or any other amount payable
hereunder;

(b) the Borrower shall fail to observe or perform
any covenant contained in Sections 5.02 to 5.13,
inclusive, or Sections 5.17 to 5.22, inclusive, of this
Agreement, Section 5(A), 5(B), 5(C) or 5(G) of the
Borrower Pledge and Security Aqreement Section 4.01
4.02, 4.06 or Article V of _/
Agreement, or Section 4.01, 4.02, 4.06 or Article V of
the ESOP II Amended Security Agreement, or any
Subsidiary shall fail to perform any covenant contained
in Section 5.01 or 5.02 of its Subsidiary Guarantee and
Security Agreement;

48

(b)(4)


Page 177

(iii) If to any other Secured Party, to it at its
address for notices under the Loan Agreement ;

or in any of the foregoing cases at such other address as
the addressee may hereafter specify for the purpose by
notice to the Collateral Agent and the Borrower. All
notices, demands and other communications to any party
hereunder shall be in writing (including bank wire, telex or
similar writing) and shall be effective (i) if given by
telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is
received, (ii) if given by mail, three Business Days after
such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if
given by other means, when delivered at the address
specified in this Section.

SECTION 7.07. Multiple Counterparts. This
Agreement may be executed in a number of counterparts, each
of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same
instrument.

SECTION 7.08. Successors and Assigns. This
Agreement is for the benefit of the Collateral Agent and the
ESOP II Banks and their successors and assigns, and in the
event of an assignment complying with Section 8.06(c) of the
Loan Agreement of all or any of the Secured Obligations, the
rights hereunder, to the extent applicable to the indebted-
ness so assigned, shall automatically be transferred with
such indebtedness. This Agreement shall be binding on the
Borrower and its permitted successors and assigns.

SECTION 7.09. Amendment and Restatement of this
Agreement. Immediately upon the receipt by the Collateral
Agent of a counterpart hereof executed by each of the
parties listed on the signature pages hereof and without
further action by any party hereto, the First Amended and
Restated ESOP II Security Agreement shall be automatically
amended and restated to read in full as set forth herein.

SECTION 7.10. WAIVER OF JURY TRIAL. EACH OF THE
BORROWER AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSAC-
TIONS CONTEMPLATED HEREBY.

IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective

(d2/2h/27008/021/SEC.93/esopl}

17


(b\(4)

(b\(4)

Page 105

pursuant to the terms and provisions thereof, and shall,
except as permitted by Section 5.13 of the Loan Agreement,
do nothing to impair the Security Interests. None of the
Secured Parties shall have any obligation or liability under
any such contract, agreement, warranty or obligation by
reason of or arising out of this Agreement nor shall any of
the Secured Parties be required or obligated in any manner
to make any payment with respect thereto or to perform any
obligation of the Borrower thereunder.

SECTION 2.03. Termination of Security Interests:
Release of Collateral. Upon payment in full of all the
Secured Obligations, the Security Interests shall terminate

and all rights of the Collateral Agent and the other S$ A
Darties ta the Collateral shall revert (subject to the

if then in effect) to th

Borrower. At any time and from time to time prior to such
termination of the Security Interests, the Collateral Agent
on behalf of the Secured Parties may release any of the
Collateral with the umanimous prior written consent of the
ESOP II Banks. Upon any such termination of the Security
Interests or any permitted release of Collateral, the
Collateral Agent will, at the Borrower's expense, execute
and deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral.

ARTICLE IIT

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants that:

SECTION 3.01. Perfection and Priority of Security
Interests. Financing statements with respect to the Colla-
teral have been filed in the office of the Secretary of the
Commonwealth of Massachusetts and the City Clerk of the City
of Boston. The Secured Parties have a valid and (except
with respect to non-cash proceeds of Accounts existing on
the date hereof) perfected security interest in all of the
Collateral subject to no prior or equal Lien (other than the
Liens-under the and no
other registration, recordation or filing with any govern-
mental body, agency or official is required in connection
with the execution or delivery of this Agreement, or is
necessary for the validity or enforceability hereof or for
the perfection of the Security Interests. The Borrower has
not performed any act which would prevent the Collateral
Agent from enforcing any of the terms and conditions of this
Agreement or which would be reasonably likely to limit the
Collateral Agent in any such enforcement.

5

(b)(4)


(Oya)
Oe)
(06K)

(6)

(b)4)

Page 30

(n) The Lenders shall have received assurances
satisfactory to them concerning the intention of
certain key officers to continue in their positions
with the Borrower.

SECTION 2.04. Original Director Guarantees. On
the 95th day following the Effective Date, the Original
Director Guarantees shall, unless a Bankruptcy Event of
Default shall have occurred prior to such 95th day, be
discharged in accordance with their terms and all security
for the Original Director Guarantees shall be released as
provided in the relevant documentation. Prior to such
discharge and release:

(i) the Borrower will not amend, or grant any
waiver under, the Original Director Restructuring
Agreement dated as of June 10, 1991 to make any change
therein which is adverse to the Borrower or the Lenders
or to waive any right thereunder the waiver of which
would be adverse to the Borrower or the Lenders;

aay EE ___|snaia continue to act as Collateral

Agent under t D or Guarantees, the
mortgage from and

to as Collateral Agent, t tor's Security
Agre@ment executed by and the
Guarantor's Security Agreements an amas Security

Agreements executed by each of the other Original
Directors (collectively, the "Original Director
Security Documents"). Both before and after the
discharge of the Original Director Guarantees and the
release of security therefor, the provisi of Article
VII of this Agreement shall apply to| in its
capacity as Collateral Agent under the Original
Director Guarantees and the Original Director Security
Documents;

(iii) the i ity of the Senior
Term Loans of shall constitute
the "Relevant Consen' enders Or purposes of the

Original Director Guarantees and the Original Director
Security Documents; and

(iv) The Tranche A Loans, Tranche B Loan nche
C Loan, Deferred Interest and (in the case of ronly}
Tranche D Obligations, as restructured hereunder, shail
continue to be outstanding as "Senior Debt" in the form
of Senior Term Loans and Revenue Performance
Obligations hereunder for purposes of the subordination
provisions of Article Iv of each of the Original
Director Guarantees.

22

(b)(4).(b)
(6)

(b)(4)

(b\(4)


Page 232



Page 240

Borrower and the Senior Term Notes and the Revenue
Performance Certificates constitute valid and binding
obligations of the Borrower, in each case enforceable
against the Borrower in accordance with their respective
terms except (i) as may be limited by bankruptcy,
insolvency, or similar laws affecting creditors! rights
generally, (ii) as may be limited by equitable principles of
(b)(4) general applicability and (iii) that certain of the remedial
provisions of Jand the
ESOP Ii Amended Security Agreement may be limited by
applicable law, although such Limitations do not in our
opinion make the remedies provided for therein (taken as a
whole) inadequate for the practical realization of the
benefits intended to be afforded thereby-

(b)(4)

The Security interests (as defined in
the £ eS Security Agreement) are valid security
interests, for the benefit of the Secured Parties (as
defined in the ESOP IT Amended Security Agreement), in all
the Borrower's right, title and interest in all Collateral
(as defined in the ESOP II Amended Security Agreement) to
the extent that the UCC is applicable thereto.

We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York and the federal laws of the United States
of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Lender is located which limits the rate of interest that
such Lender may charge or collect. No opinion is expressed
as to the existence of, or title of the Borrower to, any
item of collateral. Insofar as the foregoing opinion
involves matters governed by the laws of the Commonwealth of
Massachusetts, we have relied, without independent
investigation, upon the opinion of Ropes & Gray, a copy of
which has been delivered to you. We express no opinion as
to whether the Disclosure Provisions (as defined in the

ini ms ined in the Loan Agreement,
(b)(4) or the ESOP II Security
e extent that compliance

therewith would contravene any of the Confidentiality

Agreements (as defined in the opinion of Ropes & Gray). We

express no opinion as to the status under Section 548 of the

United States Bankruptcy Code and applicable state

fraudulent conveyance laws of (i) the Borrower's obligations

2


(b)(4)

(b)(4)
(b)4)

(b)(4)

Page 26

Expenses and Cash Flow, each of the remus / \

Ghall mean expenditures of the types
qneluded in the line item or items on the Base Projections
to which such term applies and all expenditures of any other
type which would have been included in such line item or
items had such type of expenditure been reflected in the
Base Projections.

ARTICLE IT

RESTRUCTURING

SECTION 2.01. Effectiveness of This Agreement .
This Agreement shall become effective on the date (the
"BEfective Date") when all the conditions to effectiveness
set forth in Section 2.03 have been satisfied or waived
(with the consent of all Lenders) in accordance with the

terms hereof.

SECTION 2.02. Restructuring of Obligations on the
Effective Date. On the Effective Date without further
action by army party:

(a) anche D Obligations of each Lender
other than ghall be cancelled and the Tranche
ons

p-Obligati £ ghall be restructured and
shall thereafter utstanding as portions of the
Revenue Performance Obligations of set forth

on Schedule I. The Tranche A Loans, Tranche B
Loans, Tranche C Loan and Deferred Interest, of
each Lender shall be reduced and, as so reduced,
ghall be restructured and shall thereafter be
outstanding as the Senior Term Loan and Revenue
Performance Obligation of such Lender set forth on
Schedule I. As part of such restructuring, the
Existing ESOP II Loans and
Tgations included as portions of each

@nder's Tranche A Loan, Tranche B Loan, rot\

Loan, Deferred Interest, and (in the case of

only) Tranche D Obligation shall, after reduction
as provided above, be restructured and shall
thereafter be outstanding as the respective
portions of the Senior Term Loan and Revenue
Performance Obligation of such Lender set forth on
Schedule I.

18

(b\(4)

(b)(4)


(b)(4)

(b\(4)

Page 109

to this Section 5.03, and all proceeds thereof, shall
constitute part of the Collateral hereunder.

SECTION 5.04. Non-cash Proceeds. The Borrower
shall, immediately upon its receipt of any non-cash proceeds
in respect of any Account, notify the Collateral Agent of
such receipt and (except with respect to any such non-cash
nraceeis which are subject to any restrictions described in

as

permitted by such Section) take any and alr actions che
Collateral Agent may reasonably request to perfect the
Security Interests therein and all proceeds thereof (subject
in right of priority to,anw security interest granted
therein pursuant to the
provided that the Borrower shall have the right, for so long
as no Foreclosure Event shall have occurred and be
continuing, to vote any stock, and to retain any payments or
distributions made with respect to any securities, pledged
pursuant to this Section 5.04. The Borrower shall deposit
into the Proceeds Account all cash proceeds received by it
in respect of the sale or other disposition of any such
non-cash proceeds of any Account.

ARTICLE VI

GENERAL AUTHORITY; REMEDIES

SECTION 6.01. General Authority of the Collateral
Agent. The Borrower hereby irrevocably appoints the Colla-
teral Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-
fact, in the name of the Borrower, its own name or the name
of the ESOP II Banks or otherwise, at any time and from time
to time after the occurrence and during the continuance of a
Foreclosure Event, to take any and all appropriate action
and to execute any and all documents and instruments which
may be necessary or desirable to carry out the terms of this
Agreement and, without limiting the generality of the fore-
going, the Borrower hereby gives the Collateral Agent the
power and right on its behalf, without notice to or further
assent by the Borrower, to do the following after the
occurrence and during the continuance of a Foreclosure

Event:

(i) to receive, take, endorse, assign and deliver
any and all checks, notes, drafts, acceptances, docu-
ments and other negotiable and nonnegotiable instru-
ments taken or received by the Collateral Agent as, or
in connection with, the Collateral;


(b)(4)

Page 166

Collateral subject to no prior or equal Lien (other than the
Liens under the | and no
other registration, recordation or filing with any govern-
mental body, agency or official is required in connection
with the execution or delivery of this Agreement, or is
necessary for the validity or enforceability hereof or for
the perfection of the Security Interests. The Borrower has
not performed any act which would prevent the Collateral
Agent from enforcing any of the terms and conditions of this
Agreement or which would be reasonably likely to limit the
Collateral Agent in any such enforcement .

SECTION 3.02. Location of Borrower's Principal
Place of Business and Books and Records. The Borrower's
principal place of business and principal executive office
is located at 2 Copley Place, Boston, Massachusetts. The
offices where the Borrower keeps all its Books and Records
is located at the same address.

ARTICLE IV

COVENANTS

The Borrower agrees that so long as any Secured
Obligation remains unpaid:

SECTION 4.01. Filing; Further Assurances. The
Borrower will, at its expense and in such manner and form as
the Collateral Agent may require, execute, deliver, file and
record any financing statement, continuation statement,
specific assignment or other paper and take any other action
that the Collateral Agent may reasonably request {including
without limitation the execution of security documents and
filings with respect to the Security Interests in or under
the laws of foreign countries), in order to create, pre-
serve, perfect, confirm, or validate any Security Interest
or to enable the Collateral Agent to exercise and enforce
its rights hereunder with respect to any of the Collateral;
provided that this Section 4.01 shall not require the
Borrower to (i) notify any Account Debtor of any Security
Interest prior to a Foreclosure Event or {ii) incur any
material expense. To the extent permitted by applicable
law, the Borrower authorizes the Collateral Agent to execute
and file, in the mame of the Borrower or otherwise, any and
all ucc financing statements which the Collateral Agent in
its sole discretion may deem necessary or appropriate to
perfect or further perfect the Security Interests.

142/2h/27008/021 {SEC .93/esoplI


(b)(4)

(b\(4)

Page 169

Investments. All right, title and interest in and to the
Temporary Cash Investments from time to time made pursuant
to this Section 5.03, and all proceeds thereof, shall
constitute part of the Collateral hereunder.

SECTION 5.04. Non-cash Proceeds. The Borrower
shall, immediately upon its receipt of any non-cash proceeds
in respect of any Account, notify the Collateral Agent of
such receipt and (except with respect to any such non-cash

i i icti ibed in
as

permitted by such Section) take any and all actions the
Collateral Agent may reasonably request to perfect the
Security Interests therein and all proceeds thereof (subject
in right of priority to i i

therein pursuant to the

provided that the Borrower shall have the right, for so long
as no Foreclosure Event shall have occurred and be
continuing, to vote any stock, and to retain any payments or
distributions made with respect to any securities, pledged
pursuant to this Section 5.04. The Borrower shall deposit
into the Proceeds Account all cash proceeds received by it
in respect of the sale or other disposition of any such
non-cash proceeds of any Account.

ARTICLE VI

GENERAL AUTHORITY; REMEDIES

SECTION 6.01. General Authority of the Collateral
Agent. The Borrower hereby irrevocably appoints the Colla-
teral Agent and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-
fact, in the name of the Borrower, its own name or the name
of the ESOP II Banks or otherwise, at any time and from time
to time after the occurrence and during the continuance of a
Foreclosure Event, to take any and all appropriate action
and to execute any and all documents and instruments which
may be necessary or desirable to carry out the terms of this
Agreement and, without limiting the generality of the fore-
going, the Borrower hereby gives the Collateral Agent the
power and right on its behalf, without notice to or further
assent by the Borrower, to do the following after the
occurrence and during the continuance of a Foreclosure
Event:

{i) to receive, take, endorse, assign and deliver
any and all checks, notes, drafts, acceptances, docu-
ments and other negotiable and nonnegotiable instru-

#d2/2h/27008/021/SEC,.93/esopl1


Page 173

Borrower covenants that it will not hinder, delay or impede
the execution of any power granted to the Agent in the Loan
Agreement or to the Collateral Agent in this Agreement.

(b) The Borrower, to the extent it may lawfully
do so, on behalf of itself and all who may claim through or
under it, including without limitation any and all subse-
quent creditors, vendees, assignees and lienors, waives and
releases all rights to demand or to have any marshalling of
the Collateral upon any sale, whether made under any power
of sale granted herein or pursuant to judicial proceedings
or under any foreclosure or any enforcement of this Agree-
ment, and consents and agrees that all of the Collateral may
at any such sale be offered and sold as an entirety.

(c) The Borrower waives, to the extent permitted
by applicable iaw, presentment, demand, protest and any
notice of any kind (except notices explicitly required
hereunder) in connection with this Agreement and any action
taken by the Collateral Agent with respect to the Colla-
teral.

SECTION 6.04. Application of Moneys. After the
occurrence and during the continuance of a Foreclosure
Event, any cash Collateral and the proceeds of any sale of,
or other realization upon, all or any part of the non-cash
Collateral shall be applied by the Collateral Agent in the
following order of priorities:

(i) first, to pay the expenses of such sale or
other realization, including reasonable compensation to
the Collateral Agent and its agents and counsel, and
all reasonable expenses, liabilities and advances
incurred or made by the Collateral Agent in connection
therewith, and any other unreimbursed expenses for
which the Collateral Agent is to be reimbursed pursuant
to Section 8.03 of the Loan Agreement and Section 7.05
hereof;

(ii) second, to pay to each ESOP IT Bank an amount
equal to the unpaid Secured Obligations held by it and,
if such moneys shall be insufficient to pay such
Secured Obligations in full, then to pay such monies to
the ESOP II Banks ratably in proportion to their Loan
Exposures (until, in the case of each ESOP II Bank, its
Secured Obligations are paid in full), in which case
each ESOP II Bank shall apply the amounts received by
it pursuant to this clause (ii) first to pay the
principal of its Senior Term Loans included in the
Continuing ESOP II Loans, second, to pay the unpaid
interest accrued thereon and third, to pay any other

{d2/2h/27008/021/SEC.93/esopl i

13


(b)(4)

Page 38

are within the corporate powers of the Borrower, have been
duly authorized by all necessary corporate action, require
no action by or in respect of, or filing with, any
governmental body, agency or official and do not contravene,
or constitute a default under, any provision of applicable
law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any material agreement,
judgment, injunction, order, decree or other instrument
binding upon the Borrower or any of its Subsidiaries or
result in the creation or imposition of any Lien on any
asset of the Borrower or any of its Subsidiaries, except (x)
Liens under the Collateral Documents executed by the
Borrower or a Subsidiary and (y) filings required by said
Collateral Documents to perfect or otherwise protect such
Liens.

SECTION 4.03. Binding Effect. (i) This
Agreement constitutes a valid and binding agreement of the
Borrower, (ii) the Senior Term Notes and the Revenue
Performance Certificates, when executed and delivered in
accordance with this Agreement, will constitute valid
binding obligations of the Borrower and {

[the ESOP IT Amenced Securicy
Agreemeé when
executed ang-aerivered as contemplated by this Agreement,
will constitute valid and binding agreements of the
Borrower, in the case of each such obligation and agreement
enforceable in accordance with its terms except as may be
limited by (x) bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights
generally or (y) general principles of equity (regardless of
whether enforcement is sought in equity or at law).

SECTION 4.04. Financial Information. (a) The
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of March 31, 1992 and the
related consolidated statements of operations, changes in
shareholders’ equity and cash flows for the year then ended,
reported on by Price Waterhouse, copies of which have been
delivered to each Lender, fairly present, in conformity with
generally accepted accounting principles, the consolidated
financial position of the Borrower and its Consolidated
Subsidiaries at March 31, 1992 and their consolidated
results of operations, changes in shareholders! equity and
cash flows for the year then ended.

(b) The consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of December
31, 1992 and the related consolidated statements of
operations, changes in shareholders' equity and cash flows
for the quarter and nine months then ended, copies of which
have been delivered to each Lender, fairly present, in
conformity with generally accepted accounting principles,

30


(b)(4)

(b)(4).()
(6)

(b)(4).(b)
(6)

(b)(4).(b)
(6)

Page 179

CONSENT

WHEREAS, all of the undersigned have executed Subsidiary

i Agreements (as defined in the Amended and
Restated Loan Agreement referred to below) in connection with
that certain Loan Agreement dated as of June 10, 1991 (as amended
to the date hereof, the "original Loan Agreement") among Bain &
Company, Inc. (the "Borrower"), certain lenders party thereto

(the WLenders") and
Agent (the "agent") ; ana

las

WHEREAS, the parties to the original Loan Agreement have
agreed to restructure the obligations under the Original Loan
Agreement and to amend and restate the Original Loan Agreement in
its entirety pursuant to the Amended and Restated Loan Agreement
dated as of March 31, 1993 (as amended after the date hereof, the
"Loan Agreement") among the Borrower, the Lenders and the Agent;

and

WHEREAS, each of the undersigned desires to consent to
certain changes to the Subsidiary Guarantee and Security
Agreement to which it is a party as provided for in the Loan
Agreement:

NOW, THEREFORE, each of the undersigned consents to the
changes in the Subsidiary Guarantee and Security Agreement to
which it is a party provided for by Section 2.02(c) of the Loan

Agreement.
BAIN_HOLDINGS. INC

By:

ee:

Fs vlent\ 4

BAIN & COMPANY CANADA, INC.

BAIN & COMPANY GERMANY, INC.

By$
TELS? 77 s, Sard

CIBSUBCO.3C


Page 235



(b\(4)

(b)(4)

(b)4)

Page 119

Exhibit =

[LETTERHEAD OF ROPES &@ GRAY]

March 31, 1993

To the Lenders and the Agent
Referred to Below

Ladies and Gentlemen:

This opinion is being furnished to you pursuant to
Section 2.03(j) of the Amended and Restated Loan Agreement dated
as of March 31, 1993 (the "Loan Agreement") between Bain &
Company, Inc., a Massachusetts corporation (the “ " the
Lenders listed on the signature pages thereof and (b)(4)

as Agent, in connection with the

closing held this day under the Loan Agreement. Terms defined in
the Loan Agreement and not otherwise defined herein are used
herein with the meanings so defined.

We have acted as counsel to the Borrower in connection with
the Loan Agreement and the transactions contemplated thereby and
as wuch are familiar with the proceedings taken by it in
connection therewith.

We have participated in the preparation of the Loan
Agreement, |the ESOP IT
Amended Security Agreement and the Senior Tern Notes and the
Revenue Performance Certificates being delivered to the Lenders
today (collectively, the “pestructuring Documents"), and have
axamined copies, executed by the Borrower ef each of the
foregoing documents. We have also examined such certificates,
documents and records, and have made such examination of law, as
wa have deemed necessary to enable us to render the opinions
expressed below. In addition, we have examined and relied as to
matters of fact upon representations and warranties contained in
the Loan Agreement and in certificates, copies ef which have been
furnished to you.

For purposes of this opinion, we have assumed the
genuineness of all signatures, the authenticity of all documents
gubmitted to us as originals and the confermity to original
documents of all documents submitted to us as copies.

CIBOPIA2. BC


Page 198

Revenue Performance Certificate (cont'd)

REVENUE PERFORMANCE OBLIGATION AMOUNT AND PAYMENTS

Amount of

Revenue Amount of
Performance Obligation Notation
Obligation Repaid Made By



Page 229

Notes or the Revenue Performance Certificates or any
related instrument, or in connection with the exercise
of the rights or the performance of the obligations of
this Corporation thereunder.

CIBSECCE.8C ~2-


Page 140



(b)(4)

(b)(4)
(b\(4)

(b)(4)
(b)(4)

Page 181

SENIOR TERM NOTE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., @
Massachusetts corporation (the "Barrower") promises to pay

on March 21.2001 ra, the order of
(the “L' # Term Loan
THcipal amount of (b)(4) The Borrower
promises to pay interest on @ unpal principal amount of
such Senior Term Loan on the dates and at the rate or rates
provided for in the Loan Agreement. All such payments of
principal and interest shail be made in lawful money of the
United States in Feder te immadiately available
te

#fire of

All prepayments of the principal therco shall be
recorded by the Lender and, prior any transfer hereof,
appropriate notations to evidence foregoing information
with respect to guch Senior Term ean then outstanding shall
be endorsed by the Lender on thi nedule attached hereto,
or ona continuation of guch sckahule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement .

This note is one of the Senior Term Notes referred
to in the Amended and Restated Loan Agreement dated as of
March 31, 1993 among the Borrower, the lenders listed on the

jqnature pages thereof and

as Agent (as the O! ime to

7 "Loan Agreement") . Terms defined in the Loan
Agreement are used herein with the same meanings. The
Borrower shall prepay the principal amount hereof as and to
the extent provided in the Loan Agreement . Reference is

(b\(4)


Page 62

SECTION 7.04. Consultation with Experts. The
Agent and any Collateral Agent may consult with legal
counsel (who may be counsel for the Borrower), independent
public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of

such counsel, accountants or experts.

SECTION 7.05. Liability of Agent and Collateral
Agents. Neither the Agent, any Collateral Agent, nor any of
their respective directors, officers, agents, or employees
shall be liable for any action taken or not taken by it in
connection herewith (i) with the consent or at the request
of the Relevant Consent Lenders or Relevant Default Lenders,
ag the case may be, or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent, any
Collateral Agent, nor any of their respective directors,
officers, agents or employees shall be responsible for or
have any duty to ascertain, inquire into or verify (i) any
statement, warranty or representation made in connection
with this Agreement, the Original Loan Agreement or any
Collateral Document; (ii) the performance or observance of
any of the covenants or agreements of the Borrower or any
Subsidiary contained in this Agreement, the Original Loan
Agreement or any Collateral Document; (iii) the satisfaction
of any condition specified in Article II, except, with
respect to the Agent, receipt of items required to be
delivered to the Agent; (iv) the validity, effectiveness or
genuineness of this Agreement, the Senior Term Notes, the
Revenue Performance Certificates, the Original Loan
Agreement and the notes and certificates outstanding
thereunder, any Collateral Document or any other instrument
or writing furnished in connection herewith or therewith; or
(v) the existence, genuineness or value of any Collateral or
the validity, perfection, priority or enforceability of any
security interest in any Collateral. Neither the Agent nor
any Collateral Agent shall incur any liability by acting in
reliance upon any notice, consent, certificate, statement,
or other writing (which may be a bank wire, telex or similar
writing) believed by it to be genuine or to be signed by the
proper party or parties.

SECTION 7.06. Indemnification. (a) Each Lender
shall, ratably in accordance with its Relevant Exposure
hereunder, indemnify the Agent (to the extent not reimbursed
by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss
or liability (collectively, *"Losses") that the Agent may
suffer or incur (except such Losses as result from the
Agent's gross negligence or willful misconduct) after the
date hereof in connection with this Agreement or the
Original Loan Agreement or any action taken or omitted by
the Agent hereunder or thereunder. As used in this

54


(b)(4).()
(6)

Page 116

recorded, registered, or filed under the provisions of any
applicable law.

(b) If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction
and shall be liberally construed in favor of the Collateral
Agent in order to carry out the intentions of the parties
hereto as nearly as may be possible; and (ii) the invalidity
or unenforceability of any provision hereof in any jurisdic-
tion shall not affect the validity or enforceability of such
provision in any other jurisdiction.

SECTION 7.05. Fees; Expenses: Documenta Taxes.
The Borrower shall pay the reasonable fees of the Collateral
Agent and all reasonable out-of-pocket expenses incurred by
the Collateral Agent or any ESOP II Bank, including reason-
able fees and disbursements of counsel, in connection with
the administration, sale or other disposition of the
Collateral or the preservation, protection or defense of the
rights of the Collateral Agent and the Secured Parties in
and to the Collateral.

SECTION 7.06. Notices. All notices, demands and
other communications hereunder shall be given or made to the
following parties at the following addresses: ~

(i) If to the Borrower, to it at 2 Copley Place,
Boston, Massachusetts 02116, Attention: Colin F. Ander-
son or at telex number 710321 0110;

(ii) Te ta the Collateral Agent. to ir at/

or

(iii) If to any other Secured Party, to it at its
address for notices under the Loan Agreement;

or in any of the foregoing cases at such other address as
the addressee may hereafter specify for the purpose by
notice to the Collateral Agent and the Borrower. All
notices, demands and other communications to any party
hereunder shall be in writing (including bank wire, telex or
similar writing) and shall be effective (i) if given by
telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is
received, (ii) if given by mail, three Business Days after
such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or (iii) if
given by other means, when delivered at the address
specified in this Section.

16


(b)(4)

(b)(4)

Page 80

EXHIBIT B

REVENUE PERFORMANCE CERTIFICATE

New York, New York

For value received, Bain & Company, Inc., a
Massachusetts corporation (the tBorrower"), promises to pay

to the order of

{the "Lender") the Revenue Performance Obligation in the
amount of $ on the dates provided for, on the terms
and subject to the conditions set forth, in the Loan
Agreement referred to below. All such payments shall be

made in lawful money of the United States in Feder:
other immediately available funds at the office o

{es

All payments made with respect to such Revenue
Performance Obligation shall be recorded by the Lender and,
prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to such
Revenue Performance Obligation then outstanding shall be
endorsed by the Lender on the schedule attached hereto, or
on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement .

This certificate is one of the Revenue Performance
Certificates referred to in the Amended and Restated Loan
Agreement dated as of March __, 1993 among the Borrower, the

lenders listed on the signature pages thereof and
as Agent {as the same

Tay De amenced rrom time to time, the "Loan Agreement").
Terms defined in the Loan Agreement are used herein with the



(b)(4)

(b)(4)

(b)(4)
(b)4)

Page 32

in such Senior Term Loans or Revenue Performance
Obligations.

(e) The outstanding Revenue Performance
Obligations shall be due and payable on September 30, 2001;
provided that, when the Agent has received the certificate
required by Section 3.04(a) setting forth the calculation of
Incremental Revenue for Fiscal 2001, all principal and
interest (including any interest payable with respect to
overdue amounts) required to be paid on or with respect to
the Senior Term Loans and the Revenue Performance
Obligations shall have been paid in full, and all
Incremental Revenue Payments required by Section 3.04(b) for
Fiscal 2001 and all prior Fiscal Years have been paid in
full, then if the Revenue Performance Obligations held by
Lenders_other chaal pall not have bean accelerated
pursuant to Sectio: sw4 prior to such date, the obligation
of the Borrower to repay any remaining outstanding nue
Performance Obligations held by Lenders other than shall (b)(4)
be ased and forgiven without further action by any party
and] \enail negotiate in good faith whether any
Inecrem al Revenue for any Fiscal Year after Fiscal 2001 or
any other funds will be applied to nay any remaining Revenue
Performance Obligations held by (b\(4)

(£) The Borrower may, upon at least three
Business Days' notice to the Agent, prepay the Senior Term
Loans or Revenue Performance Obligations in whole at any
time, or from time to time in part in amounts aggregating
$250,000 or any larger multiple thereof. Each such optional
prepayment shall be applied as set forth in Section 3.05.

(g) Upon receipt of a notice of prepayment
pursuant to this Section, the Agent shall promptly notify
each Lender of the contents thereof and of such Lender's
share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.

gs and to the extent provided in section 33 V
to the Tranche C Loans. Any
e @ prepayments of the Senior
Term Loans required by subsection (b) above in Fiscal 1994,
Fiscal 1995 and Fiscal 1996 as provided in the Lease with
respect to the Tranche C Loans. The Borrower will provide
prompt written notice of any such reduction to the Agent.

SECTION 3.04. Incremental Revenue. (a) As soon
as practicable and in any event within 90 days after the end

of each Fiscal Year to and including Fiscal 2001, the
Borrower shall deliver to each of the Lenders a certificate

(h) The outstandin xincipal amount of the
Senior Term Loans by ghall be reduced by
the amount of any

24


()(4)
Page 98



(b)(4)

(b)(4)

(b)(4)

(b)(4)

Page 13

non-cash writedowns of assets and non-cash reserves not
reflected in the calculation of Changes in Other Balance
Sheet Items for such Fiscal Year, (ii) minus (in each case
to the extent paid during such Fiscal Year) Capital
Expenditures, ESOP Cash Payments, Foreign Plan Cash
Payments, cash payments of interest (to the extent not
included in calculating such consolidated net income for
such Fiscal Year) cash payments on or with respect to
Subordinated Obligations, Restricted Payments (without
duplication and to the extent not deducted in calculating

such consolidated net income for such Fiscal year)_cash—
payments made to vice presidents or directors

/for the

CULTENt FISCAL Year Or any prior Fiscal Year {to the extent
not deducted in calculating such consolidated net income for
such Fiscal Year), Officer Bonuses (to the extent not
deducted in calculating such consolidated net income for
such Fiscal Year) and principal payments of the Senior Term
Loans and payments of the Revenue Performance Obligations,
(iii) minus income recognized upon cancellation of
indebtedness, Changes in Working Capital, Changes in Other
Balance Sheet Items and (to the extent included in
calculating such consolidated net income for such Fiscal
Year) decreases in non-cash reserves for such Fiscal Year.

"Changes in Other Balance Sheet Items" means, for
any Fiscal Year, (i) the sum of deferred taxes, deferred
credits relating to rent holiday and deferred lease/rent
expense (any liability for the foregoing three items being
treated ag a negative number),

(ii) the sum of deferred taxes, deferred credits
ating to rent holiday and deferred lease/rent expense
(any liability for the foregoing three items being treated

aa a negative number)

"Changes in Working Capital" means, for any Fiscal
Year, (i) Working Capital at the end of such Fiscal Year
minus (ii) Working Capital at the end of the previous Fiscal
Year.

a and its successors.

5


Page 81

game meanings. Reference is made to the Loan Agreement for
provisions for the prepayment hereof and the acceleration of

the maturity hereof.

BAIN & COMPANY, INC.

By

Title:


()(4)
Page 87



Page 231



(b)(4)

(b\(4)

(b)(4)

(b)(4)

(b)(4)

Page 9

/d2/2h/27008/021/AMEND93/amend. restate
DRAFT: 3/31/93

AMENDED AND RESTATED
LOAN AGREEMENT

AMENDED AND RESTATED LOAN AGREEMENT dated as of
March 31, 1993 among Bain & Company, Inc., a Massachusetts
corporation, the Lenders listed on the signature pages

hereof_and | Jas
Agent.
BACKGROUND
t Recoll, and (b)(4)

the Borrower aré parties €0 a Loan Agreément dated as o
June 10, 1991 (as amended prior to the date hereof, the

"Original Loan Agreement"). Pursuant to the Original Loan
Agreement, various_obligations of the Borrower (including
obligations under | |the ESOP II

Loan Agreement and the ESOP II Reimbursement Agreement) were
restructured and are now outstanding as Tranche A Loans,
Tranche B Loans, a Tranche C Loan and Tranche D Obligations.
The amounts of such loans and obligations outstanding on the
date hereof, including Deferred Interest thereon, are shown
on Schedule I.

2. The Lenders and the Borrower have agreed

that, upon pa Borrower to the Lenders of an
aggregate of lin cash and subject to the terms
and conditiom eement, on the Effective D,
(b)(4)
Tranche

the Tranche D Obligations held by Lenders other tha
shall be-cancelled_without consideration, (ii) the T
Obligations of ishall be restructured as Revenue
Performance Obrigations and (iii) the Tranche A, B and C
Loans outstanding under the Original Loan Agreement
(including Deferred Interest) shall be reduced and
restructured and shall be outstanding hereunder as Senior
Term Loans and Revenue Performance Obligations.

3. The Tranche A,B and C Loans and Tranche D
Obligations outstanding under the Original Loan Agreement

* Capitalized terms used herein have the meanings set
forth in Section 1.01.


Page 115

only if, such amendment or waiver is in writing and signed
by the Borrower and the Collateral Agent (with the consent
of the Relevant Consent Lenders); provided that no such
amendment or waiver, unless consented to by all the ESOP II
Banks, shall release any Collateral from the Security Inter-
ests, amend Section 6.04 hereof, change the definition of
"Collateral" or "Accounts" or change the percentage of the
relevant amount, or otherwise change the number or identity
of the ESOP II Banks or any of them which shall be required
for the ESOP II Banks to take any action under this Section
or any other provision of this Agreement.

SECTION 7.02. Waivers; Non-Exclusive Remedies. No
failure on the part of the Collateral Agent to exercise, and
no delay in exercising and no course of dealing with respect
to any right under this Agreement shall operate as a waiver
thereof; nor shall any single or partial exercise by the
Collateral Agent or any ESOP II Bank of any right under the
Loan Agreement or this Agreement preclude any other or
further exercise thereof or the exercise of any other right.
The remedies under this Agreement and the Loan Agreement are
cumulative and are not exclusive of any other remedies
provided by law.

SECTION 7.03. Governing Law: Submission to
Jurisdiction. This Agreement shall be construed in accor-
dance with and governed by the laws of the State of New
York, except as otherwise required by mandatory provisions
of law and except to the extent that remedies provided by
the laws of any jurisdiction other than the State of New
York are governed by the laws of such jurisdiction. The
Borrower hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District
of New York and of any New York State court sitting in New
York City for purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions contem-
plated hereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of the venue of any such
proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in
an inconvenient forum.

SECTION 7.04. Limitations by Law: Severability.
(a) All rights, remedies and powers provided in this Agree-
ment may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law,
and all the provisions of this Agreement are intended to be
subject to all applicable mandatory provisions of law which
may be controlling and to be limited to the extent necessary
go that they will not render this Agreement invalid, unen-
forceable in whole or in part, or not entitled to be

15


()(4)
Page 85



Page 192

Senior Term Note (cont'd)

SENIOR TERM LOAN AMOUNT AND PREPAYMENTS OF PRINCIPAL

Amount of
Amount of Principal Notation
Senior Term Loan Prepaid Made By

2g
>



Page 111

any kind (except the notice specified below of the time
and place or any public or private sale) to or upon the
Borrower or any other Person {all of which demands,
advertisements and/or notices are hereby waived by the
Borrower), (i) apply cash, if any, then held by the
Collateral Agent as Collateral as specified in Section
6.04 and (ii) collect, receive, appropriate and realize
upon the Collateral or any part thereof and/or sell
assign, give an option or options to purchase or other~
wise dispose of and deliver the Collateral (or contract
to do so) or any part thereof in one or more parcels at
public or private sale, at any office of the Collateral
Agent or elsewhere in such manner as the Collateral
Agent may deem best, for cash or on credit or for
future delivery without assumption of any credit risk.
The Collateral Agent or any ESOP II Bank shall have the
right upon any such public sale, and, to the extent
permitted by law, upon any such private sale or sales,
to purchase the whole or any part of the Collateral so
sold, free of any right or equity or redemption in the
Borrower, which right or equity is hereby expressly
waived and released. The Borrower further agrees, at
the Collateral Agent's request, to execute any docu-
ments and take any other actions necessary or appro-
priate to permit the Collateral Agent to take posses-
gion and control of the Proceeds Account and the funds
therein and to collect any Books and Records, and to
make such Books and Records available to the Collateral
Agent at places which the Collateral Agent shall rea-
sonably select. To the extent permitted by applicable
law, the Borrower waives all claims, damages and
demands against the Collateral Agent or the ESOP II
Banks arising out of the foreclosure, repossession,
retention or sale of the Collateral. The Borrower
agrees that the Collateral Agent need not give more
than ten days' notice (which notification shall be
deemed given when mailed, postage prepaid, addressed to
the Borrower at its address specified in Section 7.06
of the time and place of any public sale or of the time
after which a private sale may take place and that such
notice ig reasonable notification of such matters.

(c) The Collateral Agent (i) shall have the right
and power to institute and maintain such suits and
proceedings as it may deem appropriate to protect and
enforce the rights vested in it by this Agreement and
(ii) may either after entry, or without entry, proceed
by suit or suits at law or in equity to enforce such
rights and to foreclose upon the Collateral and to sell
all or, from time to time, any of the Collateral under
the judgment or decree of a court of competent
jurisdiction.

il


()(4)
Page 96



(b)\@)4)

(b)(4)

(b)(4)
(b)(4)

Page 184

SENIOR TERM NOTE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., 4
Massachusetts corporation (the "Berrower") promises to pa

on March 31, 2001 to the order of\ SO
Ht anda @ Senior Term Loan

= ag PE SC EPS TT a The Borrower
promises to pay interest on the unpaid prince pal amount of
guch Senior Term Loan on the dates and at the rate or rates
provided for in the Loan Agreement. All such payments of
principal and interest shall be made in lawful money of the

United States in Federgl_ or other immediately available

funds at the office of

incipal thereof ghall be
Geany transfer hereof,
e foregoing information

All prepayments of the p
recorded by the Lender and, prior
appropriate notations to evidenc
with respect to such Senior Te lan then outstanding shall
be endorsed by the Lender on th edule attached hereto,
or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement.

This note is one of the Senior Term Notes referred
to in the Amended and Restated Loan Agreement dated as of
March 31, 1993 among the Bor ders listed on the

gignature pages thereof and
as Agent (as the 8
ime, @ "Loan Agreement"). Terms defined in the Loan

Agreement are used herein with the same meanings. The
Borrower shall prepay the principal amount hereof as and to
the extent provided in the Loan Agreement. Reference is

(b\(4)


(b\(4)
(b)(4)

(b)(4)

Page 187

SENIOR TERM NOTE

New York, New York
March 31, 1993

For value received, Bain & Company, Ine., a
Massachusetts corporation (the "Borrower") , promises to pay
on March 31, 2001 to the order of RECOLL MANAGEMENT
CORPORATION (the "Lender") the Senior Term Loan having a
principal amount of $12,361,716.50. The Borrower promises
to pay interest on the unpaid principal amount of such
Senior Term Loan on the dates and at the rate or rates
provided for in the Loan Agreement. All such payments of
principal and interest shall be made in lawful money of the
United States in Federal_or other immediately available

funds—at the office of

All prepayments of-the principal ¢hereof shall be
recorded by the Lender and, prior to any F sfer hereof,
appropriate notations to evidence the fo oing information
with respect to such Senior Term Loan outstanding shall
be endorsed by the Lender on the schedub attached hereto,
or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement ghall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement .

This note is one of the Senior Term Notes referred
to in the Amended and Restated Loan Agreement dated as of
March 31, 1993 among the Borrower the le i
giqnature pages thereof and
as Agent (as the same may be amende
time, "Loan Agreement") . Terms defined in the Loan
Agreement are used herein with the same meanings. The
Borrower shall prepay the principal amount hereof as and to
the extent provided in the Loan Agreement. Reference is



Page 64

time by giving written notice thereof to the Lenders and the
Borrower, and upon such resignation shall be discharged from
its duties and obligations hereunder. The Agent or any
Collateral Agent may be discharged at any time by written
notice given to the to the Agent or such Collateral Agent by
the Relevant Consent Lenders. Upon any such resignation,
the Relevant Consent Lenders shall have the right to appoint
a successor Agent or Collateral Agent, as the case may be.
If no successor Agent or Collateral Agent shall have been so
appointed by the Relevant Consent Lenders, and shall have
accepted such appointment, within 30 days after the giving
of notice resulting in such resignation or discharge, then
the retiring or discharged Agent or Collateral Agent may
appoint a successor Agent or Collateral Agent, which shall
be a commercial bank organized or licensed under the laws of
the United States of America or of any State thereof and
having a combined capital and surplus of at least
$50,000,000. Upon the acceptance of its appointment as
Agent or Collateral Agent hereunder by a successor Agent or
Collateral Agent, such successor Agent or Collateral Agent
shall thereupon succeed to and become vested with all the
rights and duties of the retiring or discharged Agent or
Collateral Agent. After any retiring or discharged Agent's
or Collateral Agent's resignation or discharge hereunder,
the provisions of this Article ghall inure to its benefit as
to any actions taken or omitted to be taken by it while it
was Agent or Collateral Agent.

SECTION 7.09. Appointment of Collateral
Co-Agents. At any time or times, in order to comply with
any legal requirement in any jurisdiction, any Collateral
Agent may appoint another bank or trust company or one or
more other Persons, either to act as co-agent or co-agents,
jointly with such Collateral Agent, or to act as separate
agent or agents with such power and authority as may be
necessary for the effectual operation of the provisions of
the Collateral Documents for which such co-agents or
separate agent are appointed and may be specified in the
instrument of appointment (which may, in the discretion of
the appointing Collateral Agent, include provisions for the
protection of such co-agent or separate agent similar to the
provisions of Sections 7.02 to 7.07, inclusive).

SECTION 7.10. Agent's Fee. The Borrower shall
pay to the Agent for its own account a fee calculated at the
rate of $50,000 per annum for the period from and including
the Effective Date to but excluding the date on which the
Agent no longer has any duties under this Agreement or any
Collateral Document. Such fee shall be payable quarterly in
arrears on each Quarterly Date.

ARTICLE VIII

56


(b)(4)

Page 60

(4ii) with respect to any Event of Default relating
to the Borrower Pledge and Security Agreement or the
Subsidiary Guarantee and Security Agreements, "Relevant
Default Lenders" means Banks holding more than 50% in
aggregate outstanding principal amount of the Senior
Term Loans held by the Banks, except that with respect
to any Event of Default resulting froma breach of
Section 5(G) of the Borrower Pledge and Security
Agreement, "Relevant Default Lenders" means Banks
holding more than 40% in aggregate principal amount of
the Senior Term Loans held by the Banks;

(iv) with respect to any Event of Default relating
"

to
Default henders"

Loans; and

(v) with respect to any Event of Default relating
to the ESOP II Amended Security Agreement, "Relevant
Default Lenders" means ESOP II Banks holding more than
50% in aggregate outstanding principal amount of the
Continuing ESOP II Loans.

For purposes of this Section 6.02, an Event of Default shall
be deemed to "relate" to an agreement or other document if
it occurs because (x) a representation, warranty,
certification or statement made therein or in any document
delivered pursuant thereto was incorrect in any material
respect when made or deemed made or (y) a covenant or
agreement contained therein is not observed or performed.

No provision of this Agreement (including without limitation
this Section 6.02 or Section 6.01) shall affect the remedies
available to the Landlord under the terms of the Lease.

SECTION 6.03. Notice of Defaylt. The Agent shall
give notice to the Borrower under Section 6.01(c) promptly
upon being requested to do so by any Lender and shall
thereupon notify all of the Lenders thereof.

SECTION 6.04. Acceleration of Revenue Performance
Obligations. Upon the occurrence of any Bankruptcy Event of
Default or any Event of Default specified in clause {k) of
Section 6.01, the Revenue Performance Obligations shall
become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.

ARTICLE VII

THE AGENT AND THE COLLATERAL AGENTS

52


(b)(4)

Page 22

member of the ERISA Group for employees of any member of the
ERISA Group or (ii) has at any time within the preceding
five years been maintained, or contributed to, by any Person
which wag at such time a member of the ERISA Group for
employees of any Person which was at such time a member of
the ERISA Group.

"Pre-Acceleration Notice" has the meaning set
forth in Section 6.01.

"Qualifying Severance Costs" means, for any
period, severance costs of the Borrower and its Consolidated
Subsidiaries for such period not exceeding, with respect to
each employee, the greater of (i) the amount required to be
paid under the Borrower's severance policy as set forth in
the written description of such policy provided to the
Lenders prior to the Effective Date and (ii) the amount
required to be paid by applicable law.

"Quarterly Date" means the last Business Day of
each March, June, September and December.

"Recoll" means Recoll Management Corporation, as
Attorney in Fact for the Federal Deposit Insurance
Corporation, as Receiver for New Bank of New England, N.A.,
and its successors.

"Releasing Officer" has the meaning set forth in
Section 5.22(d).

"Relevant Consent Lenders" has the meanings set
forth in Section 8.05(b).

"Relevant Default Lenders" has the meanings set
forth in Section 6.02.

"Restricted Payment" means (i) any dividend or
other distribution on any shares of the Borrower's capital
stock (except dividends payable solely in shares of its
capital stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of, or
otherwise with respect to, (a) any shares of the Borrower's
capital stock or (b) any option, warrant or other right to
acquire shares of the Borrower's capital stock, including
without limitation any payment under the Restructured ESOP
measured by reference to shares of the Borrower's capital
stock.

14



Page 239

Davis PoLk & WAROWELL

450 LEXINGTON AVENUE

1 CHASE MANHATTAN PLAZA New York, N.Y. 1OOI7 1 FREDERICK'S PLAGE

NEW YORK, N.Y, 10095 212-480-4000 LONDON Ec2R 2AB

FAK: 212-450-4800
2-1, MARUNGUCH! -CHOME

eHrvODA-Ku, TOKYO 100

1300 I STREET, NW
WASHINGTON, 9.C, 20008

WRITER'S DIRECT NUMBER?

MESSETURM
6000 FRANKFURT AM MAIN |

4, PLACE DE LA CONCORDE
7s008 PARIS

March 31, 1993

To the Lenders and the Agent
oan ai_+. Relow

(b)(4)

Dear Sirs:

(b)(4) We have participated in the preparation of (i) the
Amended and Restated Loan Agreement dated as of March 31,
1993. (the “Loan Agreement") among Bain & Company, Inc., 4
Massachusetts corporation (the "Borrower"), the lenders
ietad on the signature pages thereof (the “Lenders") and
\.as Agent (the

b
(oy(4) maT
(iii) the ESOP IT Bmended Security Agreement referred to
therein, and have acted as counsel to the Agent for the
purpose of rendering this opinion pursuant to Section
2.03(k) of the Loan Agreement. Terms defined in the Loan

Agreement are used herein as therein defined.

We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.

In rendering this opinion, we have assumed that
the Loan Agreement constitutes a valid and binding agreement
of each party thereto (other than the Borrower) -

Upon the basis of the foregoing, and subject to

the qualifications set forth in the last paragraph of this
letter, we are of the opinion that:

The Loan Agreement, | penmer-secerey—
(b)(4) and the ESOP I ed Security (6)(4)

Agreement constitute valid and binding agreements of the



()(4)
Page 51



(b)(4)
(b)(4)

(b)(4)
(b)(4)

(b\(4)

(b\(4)

(b)(4)
(b)(4)

(b\(4)

Page 55

exceeding 15% of the outstanding principal amount plus
accrued and unpaid interest of any Subordinated Obligations
repurchased or acquired; provided that {i) the aggregate
amount used to repurchase or otherwise acquire Subordinated
Obligations in any Fiscal Year shall not exceed the amount
(if any) of the Incremental Revenue Basket available to be
used for such repurchase or acquisition on the date thereof
(ii) after giving effect to such repurchase or acquisition,
no Default shall have occurred and be continuing.

(c) The Borrower will not amend the Senior Plan
Notes or waive any default in the payment of amounts due
thereunder (it being understood that the Borrower may
forbear from exercising any remedies with respect to any
such default to the extent provided in the Senior Plan
Notes). The Borrqwer will nor nermit the subordination

provisions of the Debt t or
waived and will nof make any contributions
in any Fiscal Year in excess Of the sum of

Ti) payments Of principal of and interest on the Senior Plan
Notes made in such Fiscal Yea, (ii) any payments of

principal of and _interest_on n aggregete
principal amount of outstanding on
and after June 14, in such Fiscal
Ye ivi ect to the subordination provisions of

th IDebt and any default in the payment of
amounts due under @ Senior Plan Notes, (iii) subject to
Section 5.06(b). benefit payments required by the terms of
the not prohibited by or in excess of any
restriction imposed by applicable law and (iv) payments
under any note issued pursuant to Section 2.7(d) of the
Stockholders Agreement among the Borrower, the Bain &
Company, Inc. Employees' Stock Ownership Plan Trust and
BainCompany Partners, L.P.

(d) Notwithstanding subsections (a) and (c) above
or any other provisions of this Agreement, the Borrower may
lend to any current or former officer of the Borrower who
executes a release of liability in favor of the Borrower in
form and substance satisfactory to the Relevant Consent
Lenders (a "Releasing Officer") on an interest free basis an
amount equal to such Releasing Officer's income tax
liabilir i interes
19914_on Debt or

outstanding on and after June 14, 1991 and held by

Such Releasing Officer. The aggregate principal amount of
ESOP Subordinated Debt and phantom subordinated ESOP notes
with respect to which loans are made pursuant to this
Subsection (da) shall not exceed $3,978,000.

(b)(4)

(b)(4)

47


()(4)
Page 84



Page 146



Page 139

EXHIBIT P

(b\(4)



(b)(4)

(b\(4)

(b)(4)

(b\(4)

(b)(4)

(b)4)

Page 17

"ESOP II Amended Security Agreement" means the
Second Amended and Restated ESOP II Security Agreement,
substantially in the form of Exhibit D he ated as of
the date hereof between the Borrower and as (b)(4)
collateral agent, ag such Security Agreement may be amended
from time to time.

"ESOP II Banks" mean the holders of the Continuing
ESOP II Loans.

“ESOP II Intercreditor Agreement" means the
Intercreditor Agreement dated as q i on
Bank of New England, N.A., s (b)(4)
agent, as in effect immediately prior to June 14, T99I-

"ESOP II Loan Agreement" means the Loan Agreement
dated as of Decemb: 1986, among the Borrower, the banks
listed therein an as agent, as in effect
immediately prior to dune i4, 1991.

"ESOP II Reimbursement Agreement" means the Letter
of Credit and Reimbursement Agreement dated as of April 19,
1988 between the Borrower and as in effect immediately
prior to June 14, 1991.

"Event of Default" has the meaning set forth in
Section 6.01.

"Excess Bonus Amount" has the meaning set forth in
Section 5.11{¢).

means the loans originally
outstanding unde: Agreement, and outstanding
immediately prior e @ctive Date as the portions of

the Tranche A and Tranche B Loans (including Deferred
Interest thereon) and Tranche D Obligations specified as

_junder the Original Loan

Agreement -

"Existing ESOP II Loans" means the loans
originally outstanding under the ESOP II Loan Agreement and
the reimbursement obligations originally outstanding under
the ESOP II Reimbursement Agreement, and outstanding
immediately prior to the Effective Date as the portions of
the Tranche A and Tranche B Loans (including Deferred
Interest thereon) and Tranche D Obligations specified as
"Restructured ESOP II Loans" under the Original Loan
Agreement .


(b)(4)

(b)(4)

Page 141

EXHIBIT @

_ Bain & Co. inc

Financial Information for the Month Ended
(amounts In thousands of US$)

Amount

Revenue

Operating Expenses:
Consulting compensation
Officer compensation
Administrative expenses
Employee benefit plans

Total operating expenses
Operating margin
Non-operating income/(expense)
Income/{loss) before provision for income taxes

Add non-cash Items:
Depreciatior/amortization
ESOP expenses
Interest expense
Other _

Deduct cash payments not included in net income:
Capital expenditures
ESOP payments
Cash interest payments
Principal payments
Other

Net cash flow


Page 59

interest thereon) to be, and the Senior Term Loans (and such
other amounts) shall thereupon become, immediately due and
payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower;
provided that, in the case of any Bankruptcy Event of
Default, without any notice to the Borrower or any other act
by the Agent or the Lenders, the Senior Term Loans (together
with accrued interest thereon) shall become immediately due
and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the
Borrower; and provided, further, that no acceleration of the
Loans in the circumstances described in Sections 6.02(i) or
6.02(ii) may be requested by the Relevant Default Lenders
(as such term is defined in Sections 6.02(i) or 6.02(ii))
until 21 days after such Relevant Default Lenders deliver to
the Agent and the Borrower a notice (a "Pre-Acceleration
Notice") specifying a then existing Event of Default and
stating that such Relevant Default Lenders intend to request
acceleration by reason of such Event of Default. The Agent
shall promptly inform the Lenders of its receipt of any such
notice and the contents thereof.

SECTION 6.02. Relevant Default Lenders.

"Relevant Default Lenders" shall mean Lenders holding more
than 50% of the aggregate outstanding principal amount of
the Senior Term Loans; provided that:

{i) with respect to (x) any Event of Default
specified in Section 6.01(a) which results from {1) the
Borrower's failure to pay an aggregate of more than
$1,000,000 of principal of the Senior Term Loans when
due hereunder or (2) the Borrower's failure to make two
consecutive payments of interest hereunder, which
failure shall be continuing with respect to both such
payments more than five days after the second such
payment is due, "Relevant Default Lenders" means any
Lender;

(ii) with respect to (v) any Event of Default
specified in Section 6.01(a) and not specified in
clause (i) above, (w) any Event of Default specified in
Section 6.01(b) which results from the Borrower's
failure to comply with Section 5.06, 5.19 or 5.22, (x)
any Event of Default specified in Section 6.01(b) which
results from any failure of the Borrower to have
Revenue of at least 80% of the amount specified in
Section 5.04 for any date, (y) any Event of Default
specified in Section 6.01(j) which results froma final
judgment not subject to appeal or (2) any Event of
Default specified in Section 6.01(e) or (£}, "Relevant
Default Lenders" means Lenders holding more than 40% of
the sum of the aggregate outstanding principal amount
ef the Senior Term Loans;

SL


SECTION 5.01 Information...

Page 6

ARTICLE V
COVENANTS

5.02 Maintenance of Cash Flow -
5.03 Adjusted Expense Ratio
5.04 Minimum Revenue... -
5.05 Capital Expenditures + * %
5.06 Restricted PaymentS . - - + =
5.07 Restriction on Debt .
5.08 Negative Pledge .-.- +++
5.09 Restriction on Leases - - -
5.10 Investments ----- sess tt
5.11 Payment of Bonuses «++ +--+ *
5.12 Compensation Structure «+ =< +
5.13 Prohibition on Sale of
Receivables .- +--+ +s * s**t
5.14 Revenue Recognition .. +--+ -*
5.15 Fiscal Year. - +--+ ss tt
5.16 Insurance . - - + + +t ot tot
5.17 Consolidation, Mergers and Sales
of Assets . - ++ +: + .
5.18 Amendment of Restructuring
Documentation . - +--+: 5 * *
5.19 Transactions with Affiliates ..- -
Restructuring Fees o- + + +--+ = °
_\s
—yz- subordinated Obligations -.---
5.23 Meetings with Lenders -. +++: *
5.24 Fund Advisory Subsidiaries ..- -

ARTICLE VI
DEFAULTS

SECTION 6.01 Events of Default .. +--+ +: +

6.02 Relevant Default Lenders - ++:

6.03 Notice of Default. - - - + - - *

6.04 Acceleration of Revenue Performance
Obligations ..-- +--+ srt

ARTICLE VIL
THE AGENT AND THE COLLATERAL AGENTS

SECTION 7.01 Appointment and Authorization . - -

7.02 Agent, Collateral Agents and
Affiliates .- ++: +7

7.03 Action by Agent an Collateral
Agente -- + see rr ttt

ii

44

44
45
46
46
46
48
48

53
53
$3


Page 178

authorized officers as of the day and year first above

written.
BAIN & COMPANY, INC.
By: /s/ Colin Anderson
Title: Treasurer
(b)(4)
(b)(4).(b) By
(6) Title: Vice President

/d2/2h/27008/021/SEC.93/esop! I

18


(b)4)

BiB

(b)(4)

(b)(4)

Page 202

REVENUE PERFORMANCE CERTIF ICATE

New York, New York
March 31, 1993

For value received, Bain & Company, Ine., a
Massachusetts corporation (the "“Borrower"), promises fo pay
to the order of

(the “Lender") the Revenue Perrormance
\onrigation in the amount of on the dates
provided for, on the terms and subjepuRxco the conditions set
forth, in the Loan Agreement refe “to below. All such
payments shall be made in lawful ey of the United States
in Federal, or other immediately a fsilable funds ar rhe

office of
I

All payments made with respect to such Revenue
Performance Obligation shall be recorded by the Lender and,
prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to such
Revenue Performance Obligation then outstanding shall be
endorsed by the Lender on the schedule attached hereto, or
on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement ghall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement.

This certificate is one of the Revenue Performance
Certificates referred to in the Amended and Restated Loan

Agreement dated as of March 31, 1993 among the Borrower the
i es thereof and] ea!
same

as Agent (as
Tay bé amen Yom time to time, the “Loan Agreement").
Terms defined in the Loan Agreement are used herein with the

(b\(4)


Page 225

ARTICLE 8

Indemnification of Directors and Officers

Except as provided below, the corporation shall indemnify any
director or officer (including directors and officers who serve
at the corporation's request as directors, officers, employees Or
other agents of another organization or who serve at its request
in any capacity with respect to any employee benefit plan; such
service is nereafter described as serving in a representative
capacity) against expenses, including attorney's fees, and
against the amount of any judgment, money decree, fine, penalty,
or settlement (provided the Board of Directors deems, in its sole
discretion, the settlement to have been 4 reasonable one),
necessarily paid or incurred by such person in connection with or
arising out of any claim, or any civil or criminal action or
other proceeding of whatever nature prought against guch person
by reason of being or having peen such a director OF officer or
serving in 4 representative capacity. Such indemnification shall
apply even though at the time of such claim, action, or
proceeding guch a person is no longer a director or officer of
the corporation or serving in a representative capacity. The
foregoing indemnification shall be conditioned, however, upon the
person seeking it, at all times and from time to time, (1) fully
disclosing to any person designated by the Board of Directors all
facts, events and occurrences which the Board of Directors in its
sole discretion deems relevant to its decision to indemnify; and
(2) fully cooperating with and assisting the corporation and its
counsel in any reasonable manner with respect to protecting or
pursuing the corporation's interests in any matter relating to
the subject matter of the claim, action or other proceeding for
which indemnification is sought. No indemnification shall be
provided for any person with respect to any matter as to which
the Board of Directors determines that such person did not act in
good faith in the reasonable pelief that such person’s action was
in the best interests of the corporation or, to the extent that
guch matter relates to service with respect to an employee
benefit plan, in the best interests of the participants or the
beneficiaries of such employee benefit plan.

Expenses reasonably incurred in defending any claim, action,
suit or proceeding of the character described in the preceding
paragraph may, if the Board of Directors so decides, be advanced
by the corporation prior to final disposition thereof upon
receipt of an undertaking by the recipient to repay all such
advances if it is ultimately determined by the Board of Directors
that such person is not entitled to indemnification.

Notwithstanding the foregoing, the corporation shall not
provide indemnification for any former officer or director who,
in the judgment of the Board of Directors, was in serious or
repeated preach of his duties as guch officer or director.

-~12-


(b\(4)

Page 167

SECTION 4.02. Liens on Collateral. The Borrower
will not create or suffer to exist any Lien (other than the

jens under this Agreement, the | |
and the Borrower Pledge and Security Agreement) on
any Collateral. Without limiting the generality of the

foregoing, if any Lien on all or any part of the Collateral
shall be filed pursuant to Section 4068 of ERISA or Sec-
tion 6323 of the Internal Revenue Code or any other non-con-
sensual Lien on the Collateral shall come into existence,
the Borrower shall cause such Lien to be released within 30
days after such filing.

SECTION 4.03. Change of Principal Place of
Business and Books and Records. The Borrower will not
change its principal place of business, principal executive
office or place where it keeps its Books and Records from
the location specified in Section 3.02 unless it notifies
the Collateral Agent at least 30 days prior to such change
(making specific reference to this Section) and makes all
filings required by this Agreement and takes all other
action necessary or that the Collateral Agent may reasonably
request to maintain the perfection and priority of the
Security Interests. The Borrower will not in any event
change the location of any Collateral if such change would
cause the Security Interests in such Collateral to lapse or
cease to be perfected.

SECTION 4.04. Change of Name. The Borrower will
not change its name, identity or corporate structure in any
manner which might make any financing or continuation state-
ment filed hereunder seriously misleading within the meaning
of Section 9-402(7) of the UCC (or any other applicable
provision of the UCC) unless the Borrower shall have given
the Collateral Agent at least 30 days’ prior written notice
thereof (making specific reference to this Section) and
shall have taken all action necessary or reasonably reques-
ted by the Collateral Agent to maintain the perfection and
priority of the Security Interests in the Collateral.

SECTION 4.05. Change in Law. The Borrower will
promptly notify the Collateral Agent in writing of any
change in law known to it (and will use its reasonable
efforts to become aware of any such change in law) which (i
adversely affects or will adversely affect the validity,
perfection or priority of the Security Interests or (ii)
requires or will require a change in the procedures to be
followed in order to maintain and protect the validity,
perfection and priority of the Security Interests.

{d2/2h/27008/021/SEC .93/esopiI

(b)(4)


Date

March
March
March
March
March
March
March
March

March

31,
31,
31,
31,
31,
31,
31,
31,

31,

1993
1994
1995
1996
1997
1998
1999
2000

2001

Page 76

SCHEDULE IT
AMORTIZATION

Mandatory
Prepayment

(b)(4)


(b)(4)

Page 31

ARTICLE III

TERMS OF RESTRUCTURED OBLIGATIONS

SECTION 3.01. Interest Rares. (a) Each Senior
Term Loan shall bear interest on the outstanding principal
amount thereof from and including the Effective Date until
it becomes due at a rate of 6.5% per annum. Such interest
shall be payable quarterly in arrears on each Quarterly
Date.

(b) Except as provided in subsection (c) below,
the Revenue Performance Obligations shall not bear interest.

{c) Any overdue principal of or interest on any
Senior Term Loan and any overdue payment of any Revenue
Performance Obligation shall bear interest, payable on
demand, for each day until paid at a rate of 10.5% per
annum.

SECTION 3.02. Computation of Interest. Interest
hereunder shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed
{including the first day but excluding the last day) .

SECTION 3.03. Maturity: Mandatory and Optional
Prepayments. (a) The Senior Term Loans shall mature on

March 31, 2001.

{b) The Borrower shall prepay, and there shall
become due and payable, on each date set forth on Schedule
II, the aggregate principal amount of the Senior Term Loans
set forth opposite such date on Schedule II. All
prepayments of Senior Term Loans made pursuant to this
subsection (b) shall be applied ratably in proportion to the
outstanding principal amount of the Senior Term Loans of the
several Lenders.

(c) Whenever any Incremental Revenue Payment or
optional prepayment is applied to prepay the principal of
Senior Term Loans pursuant to Section 3.05, the subsequent
yearly prepayments of Senior Term Loans required by
subsection (b) above shall be reduced, in inverse order of
maturity, by an aggregate amount equal to the aggregate
principal amount so prepaid.

(d) All payments applied under this Section 3.03
or Section 3.05 to prepay the Senior Term Loans or pay

Revenue Performance Obli Lenders shall be
applied pro rata to its Continuing
ESOP II Loans and Continuin Obligations included

23


Page 74

(b)(4)

(b)(4).(b)

*Y : 6)
Title: Vice President

(b\(4)

66


Page 150



Page 67

proportion received by any other Lender in respect of the
aggregate of all amounts then due to such other Lender under
this Agreement, the Senior Term Notes and the Revenue
Performance Certificates, the Lender receiving such
proportionately greater payment shall purchase such
participations in the Senior Term Loans and Revenue
Performance Obligations held by the other Lenders, and such
other adjustments shall be made, as may be required from
time to time so that all such payments with respect to the
Senior Term Loans and Revenue Performance Obligations held
by the Lenders shall be shared by the Lenders pro rata to
the amounts then due under this Agreement, the Senior Term
Notes and the Revenue Performance Certificates to each of
them; provided that this Section shall not apply to amounts
received by any Lender pursuant to (i) the Collateral
Documents or (ii) the Original Director Guarantees and the
Original Director Security Documents. Amounts received
under the Collateral Documents shall nonetheless be taken
into account in determining the outstanding amounts of the
Senior Term Loan and the unpaid amounts of the Revenue
Performance Obligation of each Lender hereunder.

SECTION 8.05. Amendments and Waivers. (a) Any

provision of this Agreement, the Senior Term Notes or the
Revenue Performance Certificates may be amended or waived
if, but only if, such amendment or waiver is in writing and
is signed by the Borrower and the Relevant Consent Lenders
(and, if the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or
waiver shall, unless signed by all the Lenders who shall
then hold any Senior Term Notes or Revenue Performance
Obligations, (i) reduce the principal of, or the amount of
or rate of interest on, any Senior Term Loan, or the amount
of any Revenue Performance Obligation hereunder, (ii)
postpone the date fixed for or reduce the amount of any
payment or prepayment of principal of, or interest on, any
Senior Term Loan, or any Revenue Performance Obligation
hereunder, (iii) amend Section 6.02, change the definition
of "Relevant Consent Lenders" or "Relevant Default Lenders"
or otherwise change the percentage of any relevant amount,
or the number or identity of the Lenders, which shall be
required for the Lenders or any of them to take any action
under this Section or any other provision of this Agreement,
(iv) amend or modify the provisions of Section 3.03 or 3.05
relating to the application of payments made hereunder, (v)
amend or modify any provision of Sections 3.02, 6.01(a),
8.03, 8.04, 8.06, the definition of "Incremental Revenue",
or the definition of the Effective Date, (vi) amend or
modify Section 5.22 to permit the Borrower to repay, prepay,
repurchase or otherwise acquire Subordinated Obligations (x)
for aggregate consideration in excess of the amount of the
Incremental Revenue Basket available for guch repayment,
prepayment, repurchase or acquisition on the date thereof or

59


(b\(4)

(b)(4)

(b\(4)

(b)(4)

Page 24

"Subordinated means
obligations of the lidated
Subsidiaries to pa’

Which Obligations (i)

quire no cast payments prior to September 30, 2001 and
(ii) the obligation to pay which is subordinated on terms
acceptable to all the Lenders to the prior payment of
amounts payable by the Borrower or such Consolidated
Subsidiary (as the case may be) under this Agreement and the
Collateral Documents.

“Subordinated Obligations" has the meaning set
forth in Section 5.22(a).

"Subsidiary" means any corporation or other entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are
at the time directly or indirectly owned by the Borrower;
provided that | | Shall not be a
Subsidiary.

"Subsidiary Guarantee and Security Agreements"
means the Subsidiary Guarantee and Security Agreema d
June 10, 1991 between each of the Subsidiaries and)
as collateral agent, as such Agreements may be amem
time to time.

"Temporary Cash Investment" means any Investment
in (i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or
any agency thereof, (ii) commercial paper rated at least A-1
by Standard & Poor's Corporation and P-1 by Moody's
Investors Services, Inc., (iii) time deposits with,
including certificates of deposit issued by, any 9

\or any office

located in the United States of any Dank or trust company
which is organized under the laws of the United States or
any state thereof and has capital, surplus and undivided
profits aggregating at least $250,000,000, (iv) repurchase
agreements with respect to securities described in clause
(i) above entered into with an office of a bank or trust
company meeting the criteria specified in clause (iii) above
or (v) time deposits made by Subsidiaries with any of the
foreign banks listed on Exhibit O which are denominated
either in U.S. dollars or the local currency of the country
in which the Subsidiary making such deposit operates;
provided in each case that such Investment matures within
one year from the date of acquisition thereof by the
Borrower or a Subsidiary.

"Tranche A Loans" means the Tranche A Loans
outstanding under the Original Loan Agreement immediately

16

(b)(4)


(b\(4)

(b)(4)

(b)(4)

Page 41

SECTION 4.10. Plan Documents. The Borrower has
delivered to each Lender true and correct copies o Li
documents governing the terms or administration off

including its plan description an TL
related tru ruments .

ARTICLE V

COVENANTS

The Borrower agrees that, until all amounts
payable hereunder are paid in full (except that after all of
the Senior Term Loans and interest thereon have been paid in
full, Sections 5.07 to 5.10, inclusive and Section 5.13 will

cease to apply):

SECTION 5.01. Information. The Borrower will
deliver to each of the Lenders:

(a) as goon as available and in any event within
90 days after the end of each Fiscal Year, a
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of
operations, changes in shareholders' equity and cash
flows for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal
Year, all prepared in accordance with generally
accepted accounting principles and reported on by Price

Waterhouse or other independent public accountants of
nationally recognized standing.

accompanied by a separate report of
such independent public accountants in the form set
forth in Exhibit L;

33

(b)(4)


Page 161

CONFORMED COPY

SECOND AMENDED AND RESTATED ESOP IT
SECURITY AGREEMENT

AGREEMENT dated as of March 31, 1993 between BAIN
& COMPANY, INC., a Massachusetts corporation (with its

(b)(4) successors, the "Borrower"), and J
fas Collateral Agent hereunder;

WITNESSETH

WHEREAS, certain loans to the Borrower ("ESOP II
Loans") were outstanding under a Loan Agreement dated as of

December 22, 1986, as amended, among i
i re pages thereof and (b)(4)

(BYa} las agent and the Borrower was

bya obligated to reimburse| ]

()(4) [ -—— for a drawing
under a letter of credit Issued by under a Lecter of (b)(4)
Credit and Reimbursement Agreement dated as of April 19,
1988 between the Borrower and| | (b)(4)
Reimbursement Obligation"); and

(b)(4)

WHEREAS, the Borrower, certain lenders and
[(@oy4) s Agent, became parties
to a Loan Agreement cated as or vume 10, 1991 (as amended to
the date hereof, the "Original Loan Agreement") which
provided, among other things, for the restructuring of the
ESOP II Loans and the ESOP II Reimbursement Obligation; and

WHEREAS, in connection with the Original Loan

Agreement, the Borrower executed an Amended and Restated
ESOP II Security Aareement dated as of dune 10. 1991 between

(b)(4) the Borrower and
as collateral agent (as amended to the date hereof, the
"First Amended and Restated ESOP II Security Agreement"),
which First Amended and Restated ESOP II Security Agreement
amended and restated the documentation under which the ESOP
II Loans were originally secured; and

{82 /2h/27008/621/SEC.93/esopil


(b)(4).()
(6)

Page 248

The Other Lenders and the Agent
Referred to Below

Page Two

March at, 1993

obligations identified as those of RECOLL in the Loan Agreement and
the Schedules thereto and (B) the Loan Agreement is a valid and
binding agreement of RECOLL and the Federal Deposit Insurance
Corporation as Receiver of New Bank of New England, N.A.,
enforceable in accordance with its terms except as may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditor’s rights generally and (ii) general
principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).

truly yours,

rs Sei
Senior Counsel
RECOLL Management Corporation

pDcA/dd


(by)

(b\(4)

Page 61

SECTION 7.01. Appointment and Authorization. (a)
Each Lender confirms the irrevocable appointment and
authorization of the Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement,
the Senior Term Notes and the Revenue Performance
Certificates, and the Original Loan Agreement and the Notes
and Certificates outstanding thereunder as are delegated to
the Agent by the terms hereof or thereof, together with all
such powers as are reasonably incidental thereto.

(b) Each Bank holding obligations that are
secured or guaranteed under any Collateral Document (i)
confirms the irrevocable appointment and authorization of
to act as Collateral Agent thereunder and to sign
s lateral Document as Collateral Agent thereunder and
(ii) confirms the irrevocable authorization of 8
Collateral Agent (and any successor Collateral Agent
thereunder) to take all such action on its behalf and to
exercise such powers as are delegated to the Collateral
agent thereunder by the terms thereof or are reasonably
incidental thereto.

SECTION 7.02. Agent. Collateral Agents and
Affiliates- bhail have the same rights and powers
under this Agreement as any other Lender and may exercise or
refrain from exercising the same hough it were not the
Agent or a Collateral Agent, and nd its affiliates
may accept deposits from, lend money to, and generally
engage in any kind of business with the Borrower or any
Subsidiary or affiliate of the Borrower as if it were not
the Agent or 2 Collateral Agent.

SECTION 7.03. Action by Agent and Collateral
Agents. The obligations of the Agent hereunder and under
the Original Loan Agreement are only those expressly set
forth herein and the obligations of the relevant Collateral
Agent under each Collateral Document are only those
expressly get forth therein. Without limiting the
generality of the foregoing, the Agent shall not be required
to take any action with respect to any Default, except as
expressly provided in Article VI. As to any matters not
expressly provided for in any Collateral Document (including
without limitation, the timing and methods of realization
upon Collateral thereunder) each Collateral Agent shall act
or refrain from acting in accordance with written
instructions from the Relevant Consent Lenders or, in the
absence of such instructions, in accordance with its
discretion; provided that no Collateral Agent shall amend or
waive any provision of any Collateral Document without the
written consent of the Relevant Consent Lenders.

53

(b)(4)

(b)(4)


Page 247

IRIE/C}OUL IL)

Management
Corporation

March 5! , 1993

The Other Lenders and the Agent
ata Relow

(b\(4)

(b)(4)

Bain & Company, Inc.
2 Copley Place
Boston, MA 02116

Dear Sirs:

t am Senior Counsel of RECOLL Management Corporation. I am
rendering this opinion as counsel to RECOLL Management Corporation,
attorney-in-fact for the Federal Deposit Insurance Corporation as
Receiver of New Bank of New England, N.A. (“RECOLL"), in connection
with the Amended and Restated Loan Agreement dated as of March 31,
1993 (the “Loan Agreement") among Bain & Company, Inmc., 4
Massachusetts corporation (the “company"), RECOLL the

i ignature pages thereof an
as Agent. I an rende: Opinion
pur: > ) of the Loan Agreement. Terms defined
in the Loan Agreement are used herein as therein defined.

In connection with this opinion, I have made such
investigation as I deemed appropriate in the circumstance and I
have received and examined certificates of RECOLL relative to the
matters hereinafter set forth, on which I have relied for purposes
of this opinion.

Upon the basis of the foregoing, I am of the opinion that:
(A) RECOLL’s participation in the restructuring provided for in the
Loan Agreement and the other documents contemplated therein to be
executed have been duly authorized by all necessary action of
RECOLL and the Federal Deposit Insurance Corporation as Receiver of
New Bank of New England, N.A- and, assuming due execution and
delivery of the Loan Agreement by all other parties thereto and
satisfaction of all closing conditions set forth therein, no
authorization or consent of any other Person is required for the
effectiveness of the Loan Agreement with respect to the loans and

28 State Street, 25th Floor, Boston, MA 02109-1784 (617) 742-0020

(b)(4)


(b)(4)

(b\(4)
(b\(4)

(b\(4)
(b\(4)

(b\(4)

(b\(4)
(b)(4)

Page 27

(b) (i) The Ithe ESOP II
Loan Agreement, the ESOP II Reimbursement
Agreement and the ESOP II Intercreditor Agreement,
which were amended and merged into the Original
Loan Agreement, shall be further amended by and
merged into this Agreement so that the outstanding
obligations of the Borrower thereunder shall
thereafter be aoverned by this Agreement;

Article VII of the ESOP II Loan
Agreement an: rticle III of the ESOP II

Intercreditor A hall remain in effect

with respect to Actions or omissions

prior to June 14, 1991 and (ii) the provisions of
Jand

Article Vill of the ESOP II Loan Agreement shall
remain in effect with respect to any interest paid
under such agreements prior to June 14, 1991.

This Agreement has been structured as a single
document for the purpose of simplifying the

documentation required for the rest
r's obligations under the
the ESOP II Loan Agreement, the

Reimbursement Agreement and the ESOP II
Intercreditor Agreement, and the parties hereto
intend that this Agreement shall constitute an
amendment of each of such agreements and that the
Senior Term Loans and Revenue Performance
Obligations to be outstanding hereunder shall
continue to constitute obligations created under
and arising out of such agreements for purposes of
the subordination provisions of (i) Section 7.07
of the Partnership's Security Agreement dated as
of December 23, 1985 between Bain & Company and

as Collateral Agent as in effect on the
ate hereof, (ii) 's
guarantees of the and
(iii) any other obligations of the Borrower
(including without limitation obligations to pay
compensation) which are by their terms
subordinated to obligations created or arising
under any of the agreements referred to in the
first sentence of this subsection (b), it being
understood and agreed that neither any provision
of this Agreement nor any transaction contemplated
hereby shall constitute a waiver of any such
subordination provisions.

(c) All references in the Borrower Pledge and
Security Agreement and the Subsidiary Guarantee and
Security Agreements to Tranche A Loans or Tranche B
Loans shall be deemed to refer to the Senior Term Loans
of the Banks outstanding hereunder, all references in

ig

(b)(4)

(b)(4)


Page 148



()(4)
Page 94



(b)(4)

Page 176

proceeding brought jin such a court and any claim that any
such proceeding brought in such a court has been brought in
an inconvenient forum.

SECTION 7.04. Limitations by Law; Severability.
(a) All rights, remedies and powers provided in this Agree-
ment may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law,
and all the provisions of this Agreement are intended to be
subject to all applicable mandatory provisions of law which
may be controlling and to be limited to the extent necessary
so that they will not render this Agreement invalid, unen-
forceable in whole or in part, or not entitled to be
recorded, registered, or filed under the provisions of any
applicable law.

(b) I£ any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof
shall remain in full force and effect in such jurisdiction
and shall be liberally construed in favor of the Collateral
Agent in order to carry out the intentions of the parties
hereto as nearly as may be possible; and (ii) the invalidity
or unenforceability of any provision hereof in any jurisdic-
tion shall not affect the validity or enforceability of such
provision in any other jurisdiction.

SECTION 7.05. Fees; Expenses; Documentary Taxes.
The Borrower shall pay the reasonable fees of the Collateral
Agent and all reasonable out-of-pocket expenses incurred by
the Collateral Agent or any ESOP II Bank, including reason-
able fees and disbursements of counsel, in connection with
the administration, sale or other disposition of the
Collateral or the preservation, protection or defense of the
rights of the Collateral Agent and the Secured Parties in

and to the Collateral.

SECTION 7.06. Notices. All notices, demands and
other communications hereunder shall be given or made to the
following parties at the following addresses:

(i) If to the Borrower, to it at 2 Copley Place,
Boston, Massachusetts 02116, Attention: Colin F. Ander-
son or at telex number 710321 0110;

(ii) If to the Collateral Agent, to it at fr \

or

{2/2h/27008/021/SEC.93/esoplI

16


(b)(4)

Page 48

used by such Subsidiaries for working capital purposes and
(iv) notes permitted to be issued under Section
§.06(a) (i412).

SECTION 5.08. Negative Pledge. Neither the
Borrower nor any Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired
by it, except:

(a) Liens under the Collateral Documents;

(b) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement
and described in Exhibit M;

(c) the Lien of the lessor on property acquired
under a capital lease permitted by Section 5.09;

(4) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Subsidiary and
not created in contemplation of such acquisition;

(e) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by
any Lien permitted by any of the foregoing clauses of
this Section, provided that such Debt is not increased
and is not secured by any additional assets;

(€) Liens arising (x) in connection with legal
proceedings which are gatisfied or stayed or (y) in the
ordinary course of its business; provided that such
Liens (i) do not secure Debt, (ii) do not secure
obligations in an aggregate amount exceeding $250,000
and (iii) do not in the aggregate materially detract
from the value of its assets or materially impair the
use thereof in the operation of its business;

(g) Liens on Investments permitted under Section
5.10(e) to secure Debt permitted to be incurred under
clause (iii) of Section 5.07;

th\_tiens on amounts deposited in the

_ Ywaich

are permitted to be so deposited pursuant to
Section 5.12(c); and

(i) Liens on security deposits made on or prior
to June 14, 1991 with respect to leases of office
space.

SECTION 5.09, Restriction on Leases. Neither the

Borrower nor any Consolidated Subsidiary shall incur or
assume (whether pursuant to a Guarantee or otherwise) any

40


()(4)
Page 89



(b)(4).()
(6)

(b)(4).()
(6)

(b)(4).(b)
(6)

(b)(4).(b)
(6)

(b)(4).(b)
(6)

CIBSUBCO. BC

Page 180

BAIN CONSULTANTS, INC.

BAIN & COMPANY BELGIUM, INC.

By:
TIRIET Tes, Tent

BAIN ET COMPAGNIE
By:
By?

¥, INC., General Partner

ee [reagurer

BAIN AND COMPANY JAPAN,

(b)(4).(b)
(6)

BAIN UNITED KINGDOM, INC.

SO ETO


Page 216

present may, from time to time, postpone to a new time or place
any meeting and the postponed meeting may be held without further

notice.

section 2.6 Voting and Proxies. Each stockholder entitled
to vote shall have one vote, to be exercised in person or by
proxy, for each share of stock held by the stockholder, and 4
proportionate vote for a fractional share. When a quorum is
present at any meeting the vote of the holders of 4 majority in
interest of the stock represented which is entitled to vote and
voting shall decide any matter properly brought before the
meeting, except in the case of elections by stockholders, which
shall be decided by 4 plurality of the votes cast by stockholders
entitled to vote at the election, and except when a larger vote
is required by law, the articles of organization or these
by-laws. No yote need be taken by ballot unless so requested by
any stockholder entitled to vote thereon. Proxies must be in
writing and filed with the Clerk of the meeting before being
voted. The person named in a proxy may yote at any adjournment
of the meeting for which the proxy was given, but the proxy shall
terminate after final adjournment of the meeting. No proxy dated
more than six months before the meeting named in it shall be
valid. A proxy purporting to be executed by or on behalf of 4
stockholder shall be deemed valid unless challenged at or prior
to its exercise and the burden of proving invalidity shall rest
on the challenger. A proxy with respect to stock held in the
name of two or more persons shall be valid if executed by any one
of them unless at or prior to the exercise of the proxy the
corporation receives & specific notice to the contrary from any
one of them. Inspectors of election, if any, shall be appointed
by the Board of Directors Or, in the absence of guch appointment,
by the officer presiding at any meeting of the stockholders.

section 2.7 Action by Consent. Any action required or
permitted to be taken by stockholders may be taken without a
meeting if all stockholders entitled to vote on the matter
consent in writing to the action and such written consents are
filed with the records of the meetings of stockholders. Such
consents shall be treated for all purposes as a vote at 4

meeting.

ARTICLE 3

The Board of Directors

section 3.1 Composition. the Board of Directors shall
consist of a number which shall be fixed for the ensuing year by
the stockholders at the annual meeting. The number of directors
shall be not less than three, except that if there are only two
stockholders the number of directors shall be not less than two,
and if there is only one gtockholder, OF prior to the issuance of

~3-


Page 206

made to the Loan Agreement for

game meanings. Reference is
t hereof and the acceleration of

provisions for the prepaymen
the maturity hereof.

BAIN & COMPANY, ng,
(6)(4).(6)(6)

By.
123 4).(b.
TITY TA gate x ).(b)



(b)(4)

Page 66

up to a maximum of $30,000 for each of Recoil and (b)(4)
ee reasonable out-of-pocket @xpenses of the

Banks, including reasonable fees and disbursements of

counsel, in connection with the review and perfection of

security interests granted by Subsidiaries in assets located

in the United Kingdom, Germany and France, up to an

aggregate maximum of $10,000 and (iv) all reasonable

out-of-pocket expenses incurred by the Agent and each

Lender, including reasonable fees and disbursements of

counsel, in connection with any waiver or amendment of this

Agreement or any Collateral Document or any Event of Default

and any collection, bankruptcy, insolvency and other

enforcement proceedings resulting therefrom with respect to

this Agreement or any Collateral Document. The Borrower

shall indemnify each Lender against any transfer taxes,

documentary taxes, assessments or charges made by any

governmental authority by reason of the execution and

delivery of this Agreement, the Senior Term Notes, the

Revenue Performance Certificates, the Collateral Documents

or the Original Loan Agreement or the notes and certificates

outstanding thereunder.

(b) The Borrower agrees to indemnify each Lender
and hold each Lender harmless from and against any and all
liabilities, losses, damages, costs and expenses of any
kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by any
Lender (or by the Agent or any Collateral Agent in
connection with its actions as Agent or Collateral Agent, as
the case may be) in connection with any investigative,
administrative or judicial proceeding (whether or not such
Lender shall be designated a party thereto) relating to or
ariging out of (i) this Agreement, the maintenance of the
Senior Term Loans and Revenue Performance Obligations
hereunder, the Original Loan Agreement, the maintenance of
the loans and obligations outstanding thereunder or any
other transaction contemplated hereby or thereby; (ii) the
Collateral Documents, the Original Director Guarantees, the
Original Director Security Documents, and the transactions
contemplated thereby; and (iii) the establishment, financing
and administration of the Restructured ESOP and the
transactions effected in connection therewith or
contemplated thereby; provided that no Lender shall have the
right to be indemnified hereunder for its own gross
negligence or willful misconduct as determined by a court of
competent jurisdiction.

SECTION 8.04. Sharing of Set-Offs. Each Lender
agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment ofa
proportion of the aggregate of all amounts then due to such
Lender under this Agreement, the Senior Term Notes and the
Revenue Performance Certificates which is greater than the

58


()(4)
Page 90



(b)4)

(b)(4)

(b\(4)

Page 125

Borrower and the Senior Term Notes and the Revenue
Performance Certificates constitute valid and binding
obligations of the Borrower, in each case enforceable
against the Borrower in accordance with their respective
terms except (i) as may be limited by bankruptcy,
insolvency, or similar laws affecting creditors' rights
generally, (ii) as may be limited by equitable principles of
general applicability and (iii) that certain of the remedial
provisions of the-\| land the
ESOP II Amended Security Agreement May De iimicea yy
applicable law, although such limitations do not in our
opinion make the remedies provided for therein (taken as a
whole) inadequate for the practical realization of the
benefits intended to be afforded thereby.

2. The Security interests!

fe valid security interests,

for the benefit of the Secured Parties J

TO-Che Extent Criat

EHS New York Uniform Commercial Code (the "uUCcCc") is
applicable thereto. The Security Interests (as defined in
the ESOP II Amended Security Agreement) are valid security
interests, for the benefit of the Secured Parties (as
defined in the ESOP II Amended Security Agreement), in all
the Borrower's right, title and interest in all Collateral
(as defined in the ESOP II Amended Security Agreement) to
the extent that the UCC is applicable thereto.

We are members of the Bar of the State of New York
and the foregoing opinion is limited to the laws of the
State of New York and the federal laws of the United States
of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any
jurisdiction (except the State of New York) in which any
Lender is located which limits the rate of interest that
such Lender may charge or collect. No opinion is expressed
as to the existence of, or title of the Borrower to, any
item of collateral. Insofar as the foregoing opinion
involves matters governed by the laws of the Commonwealth of
Massachusetts, we have relied, without independent
investigation, upon the opinion of Ropes & Gray, a copy of
which has been delivered to you. We express no opinion as
to whether the Disclosure Provisions (as defined in the
aninion of Ropes & Gray) contained in the Loan Agreement,

jor the ESOP II Security

Agreement are enforceable to the extent that compliance
therewith would contravene any of the Confidentiality
Agreements (as defined in the opinion of Ropes & Gray). We
express no opinion as to the status under Section 548 of the
United States Bankruptcy Code and applicable state
fraudulent conveyance laws of (i) the Borrower's obligations

2


(b)(4)
(b)(4)

(b)(4)

(b)(4)

Page 199

REVENUE PERFORMANCE CERTIFICATE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., a
Massachusetts carnoration ithe “Borrower") .nromises fo na

to the order of

rhea Revenue Performance gation in the
amount o (b)(4) lon the dates ded for, on the
terms and subjéct to the conditions seMforth, in the Loan
Agreement referred to below. All such payments shall be

made in lawful money of the United States in Federa
other immediately available funds at the office

All payments made with respect to such Revenue
Performance Obligation shall be recorded by the Lender and,
prior to any transfer hereof, appyopriate notations to
evidence the foregoing informati ‘with respect to such
Revenue Performance Obligation én outstanding shall be
endorsed by the Lender on the-achedule attached hereto, or
on a continuation of such sch ‘le attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement ghall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement.

This certificate is one of the Revenue Performance
Certificates referred to in the Amended and Restated Loan

Agreement dated as of March 31, 1993 among the Bor: the
on the signature pages thereof aq]
as Agent (as
may be amen he *Loan Agreement") .

7
Terms defined in the Loan Agreement are used herein vith the

(b\(4)


Page 128

(Name] 2 [Date]

thereto and satisfaction of all closing conditions set forth
therein, no authorization or consent of any other Person is
required for the effectiveness of the Loan Agreement with
respect to the loans and obligations identified as those of
Recoll in the Loan Agreement and the Schedules thereto and
(B) the Loan Agreement is a valid and binding agreement of
Recoll and the Federal Deposit Insurance Corporation, as
Receiver for New Bank of New England, N.A., enforceable in
accordance with its terms except as may be limited by (1)
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting creditor's rights generally and (ii)
general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).

Very truly yours,

David Aisenberg, Esq.,
Senior Counsel


Page 35

(c) Each Lender shail record the date and amount
of each payment of amounts of its Senior Term Loan and
Revenue Performance Obligation and prior to any transfer of
its Senior Term Note or its Revenue Performance Certificate
shall endorse on the schedule forming a part thereof
appropriate notations to evidence the foregoing information;
provided that the failure of any Lender to make any such
recordation or endorsement shall not affect the obligations
of the Borrower hereunder or under the Senior Term Notes and
Revenue Performance Certificates.

SECTION 3.07. General Provisions ag to Payments.
(a) The Borrower shall make each payment of amounts due and
payable hereunder, not later than 12:00 Noon (New York City
time) on the date when due, in Federal or other funds
immediately available in New York City, to the Agent at its
address referred to in Section 8.01. The Agent will
promptly distribute to each Lender its share of each payment
received by the Agent for the account of such Lenders.
Whenever any payment of principal of, or interest on, Senior
Term Loans shall be due on a day which is not a Business
Day, the date for payment thereof shall be extended to the
next succeeding Business Day. If the date for any payment
of principal is extended by operation of law or otherwise,
interest thereon shall be payable for such extended time.

(b) Unless the Agent shall have received notice
from the Borrower prior to the date on which any payment is
due to the Lenders hereunder that the Borrower will not make
such payment in full, the Agent may assume that the Borrower
has made such payment in full to the Agent on such date and
in reliance upon such assumption, the Agent may (but shall
not be obligated to) cause to be distributed to each Lender
on such due date an amount equal to the amount then due such
Lender. If and to the extent that the Borrower shall not
have so made such payment, each Lender shall repay to the
Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the
date such Lender repays such amount to the Agent, at the
Federal Funds Rate.

SECTION 3.08. Withholding Tax Exemption. At
least five Business Days prior to the first date on which
interest is payable hereunder for the account of any Lender,
each Lender that is not incorporated under the laws of the
United States of America (and is not an agency of the United
States of America) or a state thereof agrees that it shall
have delivered to each of the Borrower and the Agent two
duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, certifying, in the case of Form
1001, that such Lender is entitled to receive payments under
this Agreement, the Senior Term Notes and the Revenue

27


Page 160



Page 183

Senior Term Note (cont'd)

SENIOR TERM LOAN AMOUNT AND PREPAYMENTS OF PRINCIPAL

Amount of

Amount of Principal Notati
Senior Term Loan Prepaid madeN
~



Page 11

increases in non-cash reserves and Subordinated Deferred
Compensation and (iv) plus (in each case to the extent paid
during such period) Capital Expenditures, ESOP Cash
Payments, Foreign Plan Cash Payments and cash payments made
to vice presidents or directors under long term compensation
plans other than Officer Bonuses for the current Fiscal Year
or any prior Fiscal Year (to the extent such compensation
payments are not deducted in calculating such consolidated
net income) .

"Affiliate" means (i) any Person that directly, or

indirectly through one or more intermediaries, controls the

(b)(4)Borrower (a "Controlling Person"), (ii) anv Person fork
han the Borrower, a Subsidiary or ~\

(b)¢ which ig controlled by or is ‘unaer common Co!

b a Controlling Person, (iii) any Original Director, (b)(4),(b)
(D)4F and (v) Bain & Company and its successors; (6)
a that [- ~ fhe BSOP Trustee

Shall not be Affiliates. “As used herein, the term "control"
means possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies
of a Person, whether through the ownership of voting
securities, by contract or otherwise.

(b\(4)

"Agent" means in its capacity as agent for
the Lenders hereunder, and its successors in that capacity.

"Agreement", and references to "this Agreement",
"herein", "hereof", "hereunder" and similar references shall
mean or refer to this Amended and Restated Loan Agreement
dated as of March 31, 1993, as thereafter amended from time

to time.

"Assignee" has the meaning set forth in Section
8.06.

"Assignment Agreement" has the meaning set forth
in Section 8.06.

(b)4



Page 210

Revenue Performance Certificate (cont'd)

REVENUE PERFORMANCE OBLIGATION AMOUNT AND PAYMENTS

Amount of

Revenue Amount of

Performance Obligation Notation
Obligation Repaid Made By

may
AX

Ss



Page 143



Page 151



Page 249

MEMORANDUM *
TO: Each of the Persons on the paTE: 3/31/93
(b)(4) Attached Distribution List
FROM: |
SUBJECT: Bain & company, Inc. /Revenue performance Obligations
(b)(4)
recently requested @ change to Section 3.03 (e) ef the
draft Amended and Restated Loan Agreement (as executed, and as
hereafter amended or otherwise modified, the "Loan Agreement")
with Bain & Company, Inc. (the Company") . Section 3.03 (e)
addresses the maturity of the Company's Revenue performance
Obligations. Formerly, draft Section 3.03 (e) provided that the
obligation of the Company to pay any remaining Revenue
b Performance Obligations to the Lenders shall be released on the
OO maturity date requested that with respect to the Revenue
(xa performance Obligations owed to it, on September 30, 2001, the
© Company and shall negotiate in good faith whether the Company
(b)(4) shall pay any Incremental Revenue (as defined in the Loan
Agreement) (or other funds) tq kor application (b)(4)
unpaid Revenue Performance Obligations.
(oy) made this request to enable it to deduct the

outstanding amount of Revenue Performance Obligations owed to it

on the maturity date pursuant to ax law. Under (b)(4)

ba
oS 4) may deduct the unpaid amount of Revenue

(6)


Page 157



Page 50

(a) loans permitted by Section 5.22(d) and other
(b)(4) Loans | jin
aggregate principal amount outstanding at any time;

(h) any Investment made from the Incremental
Revenue Basket as permitted by Section 3.04(c);

(i) the shares of the capital stock of the
Borrower purchased by Bain U.K. from Bain U.K., Inc.
Pension Plan.

(b)(4)

(b\(4) SECTION 5.11.

42


Page 251

Distribution List

Bain & Company, Inc.
Two Copley Place
Boston, Massachusetts 02116

(b)(4)

(b)(4)

Recoll Management Corporation, as Attorney-
in-fact for the Federal Deposit Insurance
Corporation, as Receiver for
New Bank of New England, N.A.

28 State Street

Boston, Massachusetts 02110

(b\(4)



(b)(4)

Page 212

BAIN & COMPANY, INC.

certificate of Assistant Clerk

I, WENDY E.R. HORNOR, Assistant Clerk of Bain &
Company, Inc., @ Massachusetts corporation (the “Borrower"), DO
HEREBY CERTIFY in my capacity as such Assistant Clerk as follows:

1. No amendment to the Articles of Organization of the

Borrower has been authorized or become effective since

une {5 , 1992, no amendment or other document relating to
or affecting the Articles of Organization, as amended, has been
filed in the office of the Secretary of State of The comnonwealth
of Massachusetts since June Is , 1992 and no action has
been taken by the Borrower, its shareholders, directors or
officers in contemplation of the filing of such amendment or
other document or in contemplation of the liquidation or

dissolution of the Borrower.

2. Attached hereto as Exhibit A is a true, complete and
correct copy of the By-Laws of the Borrower as in full force and
effect on the date hereof and at all times since October 24,

1992.

3. Attached hereto as Exhibit B is a true, complete and
correct copy of votes duly adopted by the Board of Directors of
the Borrower at a meeting duly called and held on March 29, 1993
at which meeting a quorum of said Board was at all times present
and acting. All such votes are in full force and effect on the
date hereof in the form in which adopted and, except for the
votes referred to in paragraph 4 below, no other votes have been
adopted by the Board of Directors of the Borrower or any
committee thereof relating to the Loan Agreement referred to
below and the transactions referred to in such votes.

4. Attached hereto as Exhibit c is a true, complete and
correct copy of votes duly adopted by unanimous written consent
of the members of the Financing Committee of the Board of
Directors of the Borrower. All such votes are in full force and
effect on the date hereof in the form in which adopted and,
except for the votes referred to in paragraph 3 above, no other
votes have been adopted by the Board of Directors of the Borrower
or any committee thereof relating to the Loan Agreement referred
to below and the transactions referred to in such votes.

5. The Amended and Restated Loan Agreement dated as of

March 31, 1993, as executed by the Borrower the Lender: |
i ure pages thereof and (b\(4)

as Agent (the “Loan Agreement"), is substantially in
@ form approved by the Financing Committee of the Board of
Directors of the Borrower pursuant to the votes referred to in
paragraph 4 above.

CSASECCE.8C


Page 230



(b\(4)
(b\(4)

(b\(4)
(b)(4)

(b\(4)

(b)(4)

(b)(4)

Page 10

consist of | Existing ESOP II Loans and
Existin Obligations. The portions of the loans

ou he Original Loan Agreement which consist
of. re secured by a first lien on
certain ass of © whi include the Borrower's
accounts receivable and the portions
of the Loans outstanding under the Original Loan Agreement
which consist of Exi ing ESOP II Loans are secured by a
second lien-on- th Collateral. In addition, all of the

Tranche A and Tranche B Loans outstanding under the Original
Loan Agreement are secured by a third lien on tnel
Collateral and by certain other assets of the Borrower an
its subsidiaries (the "Additional Collateral").

4. The parties intend that tha Collateral

(b)(4)

(b)(4)

and the Additional Collateral shall continue fo-secure the
portions of the Senior Term Loans into which (b)(4)

Loans, Existing ESOP II Loans and Existing

Obligations secured by such collateral shalT be

Existing ESOP II Loans and Existing|

restructured, with the same relative priority as, L
ee the restructuring. Accordingly,

igations outstanding prior to the Effective Date Shall be
restructured and remain outstanding hereunder as provided in
Schedule I.

5. The parties intend that the restructuring of
loans and obligations provided for in this Agreement shall
become effective simultaneously with a restructuring of the

currently outstanding Dbligation.

NOW, THEREFORE, the parties hereto agree to amend
and restate the Original Loan Agreement as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Definitions. The following terms,
as used herein, have the following meanings:

"Adjusted Expenses" means, for any period, Revenue
for such period (i) minus the consolidated net income of the
Borrower and its Consolidated Subsidiaries for such period,
(ii) plus (in each case to the extent included in
calculating such consolidated net income) income recognized
upon cancellation of indebtedness and decreases in non-cash
reserves, (iii) minus (in each case to the extent deducted
in calculating such consolidated net income) interest
expense, income taxes, Officer Bonuses, depreciation and
amortization expense, ESOP Expenses, Foreign Plan Expenses,
Qualifying Severance Costs, non-cash writedowns of assets,

2


(bya)

Page 244

Ropes & GRAY

obligation of the Borrower, enforceable against the Borrower in
= sith its terms.

4. The execution ana delivery Of €atn or um
Documents by the Borrower do not, and the performance by the
Borrower of the terms thereof applicable to it will not, result
in any violation of, be in conflict with, constitute a default
under, or, to the best of our knowledge, result in the creation
of a Lien on the assets of the Borrower or any subsidiary of the
Borrower (other than Liens in favor of the Lenders) under, any
term or provision of: (a) the charter or bylaws of the Borrower,
{b) any federal or Massachusetts law, statute or governmental
regulation applicable to the Borrower, or (c) to our knowledge,
any license, judgment, decree, order, agreement, indenture or
other instrument applicable to the Borrower of which we have

knowledge.

CIBOPINZ BC -3-



Page 44

(j) if and when any member of the ERISA Group (i)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV
of ERISA, or knows that the plan administrator of any
Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such
reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title Iv of ERISA or notice
that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title
Iv of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA)
in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver
of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application;
(v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section
4063 of ERISA, a copy of such notice; or (vii) fails to
make any payment or contribution to any Plan or
Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or
Benefit Arrangement which has resulted or could result
in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial
officer of the Borrower setting forth details as to
guch occurrence and the action, if any, which the
Borrower or applicable member of the ERISA Group is
required or proposes to take with respect thereto; and

(k) from time to time such additional information
regarding the financial position or business of the
Borrower and its Subsidiaries or the status of the
Restructured ESOP (including copies of correspondence
to or from the Internal Revenue Service, the Department
of Labor or any other competent authority relating to
the Restructured ESOP) as any Lender may reasonably
request.

SECTION 5.02. Maintenance of Cash Flow. (a) As
of the end of Fiscal 1994 and each subsequent Fiscal Year,
Cumulative Cash Flow shall exceed the amount for such Fiscal
Year set forth in the table below.

36


(b\(4)

(b)(4)

Page 124

EXHIBIT F

OPINION OF COUNSEL TO THE AGENT

March __, 1993

To the Lenders and the Agent
Referred to Below

Dear Sirs:

We have participated in the preparation of (i) the
Amended and Restated Loan Agreement dated as of March 31,
1993 (the "Loan Agreement") among Bain & Company, Inc., a
Massachusetts corporation (the "Borrower"), the lenders
listed an the signature pages thereof (the "Lenders") and
Las Agent (the

Agent"),
(iii) the ESOP IT Amended Security aAgrecmenr

therein, and have acted as counsel to the Agent for the
purpose of rendering this opinion pursuant to Section
2.03 (k) of the Loan Agreement. Terms defined in the Loan
Agreement are used herein as therein defined.

We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and
other instruments and have conducted such other
investigations of fact and law as we have deemed necessary
or advisable for purposes of this opinion.

In rendering this opinion, we have assumed that
the Loan Agreement constitutes a valid.and binding agreement
of each party thereto (other than the Borrower).

Upon the basis of the foregoing, and subject to
the qualifications set forth in the last paragraph of this
letter, we are of the opinion that:

C @nd the SSOP il Amended Security

‘Agreement constitute valid and binding agreements of the



Page 218

Section 3.8 Quorum and Voting. A majority of the directors
then in office shall constitute a quorum. If a quorum is not
present, 4 majority of those present at 4 meeting may, from time
to time, postpone to 4 new time or place any meeting and the
postponed meeting may be held without further notice. If a
quorum is present, a majority of the directors present and voting
may take any action unless a different vote is required by law,
the articles of organization or these by-laws. Members of the
Board of Directors OF any committee designated thereby may
participate in a meeting of the Board of Directors or of such
committee by means of a conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other at the same
time, and participation py such means shall constitute presence

in person at the meeting.

Section 3.9 Action by Consent. Any action required or
permitted to be taken at any meeting of the Board of Directors
may be taken without a meeting if all of the directors consent to
the action in writing and such consents are filed with the
records of the meetings of the Board of Directors. Such consents
shall be treated for all purposes as 4 vote at a meeting.

Section 3.10 Chairman. of Board of Directors. The Board of
Directors may elect from its own number é& Chairman and a Vice
Chairman. The Chairman, if one has been elected, shall preside
at all meetings of the stockholders and of the Board of Directors
at which the Chairman is present and shall have such other duties
and powers as the Board of Directors may decide. If the Chairman
ig not present, the Vice Chairman, if one has been elected, shall
preside at all such meetings and shall have such other duties and

powers as the Board of Directors may decide.

Section 3.11 Executive and Other Committees. The Board of
Directors may elect from its own number an executive committee
and any other committees, and designate the Chairman and Vice
Chairman of any such executive committee or other committee and
may delegate to the committees any OF all of its powers except
the power to (&) change the principal office of the corporation;
(b) amend the by-laws; (¢) elect officers required by law to be
elected by the stockholders or directors and fill vacancies in
any such offices; (d) change the number of the Board of
Directors; (@) remove officers or directors from office; (f)
authorize the payment of any dividend or distribution to
stockholders; (9) authorize the reacquisition for value of stock
of the corporation; oF (h) authorize a merger. The Board of
Directors may decide the manner in which any such committees
shail conduct their business. The Board of Directors shall have
power to rescind any action of any committee, but such rescission

shall not be retroactive.

~5-


Page 23

(b)(4)

in the case of each such document in the form executed on or
prior to the Effective Date, as each such document may be
amended from time to time.

"Revenue" means, for any period, the consolidated
gross revenue of the Borrower and its Consolidated
Subsidiaries for such period.

"Revenue Performance Certificates" means
certificates of the Borrower, substantially in the form of
Exhibit B hereto, evidencing the Revenue Performance
Obligations.

"Revenue Performance Obligations" means the
obligations identified as Revenue Performance Obligations in

Schedule I.
(b)(4).0) Settlement Agreement" means the
(6) Agreement between the Borrower and | [ (b)(4).(b)
relating to certain obligations of the Borrower to (6)(4),(b)
(b)(4).(b) Lit the form executed on or prior to June 14 (6)
(6) 7 as Such Agreement may be amended from time to time.
b)(4 .
(oy) "Senior Plan Notes" means (i) the
ii)
Tnstallment Note dated Decemper 31,1986 of
the Bain & Compan Inc. loyee's Stock Ownership Plan
(b)(4) Trust, (iii) the nstallment Note dated April
19, 1988 of the

(b)(4) \Gyt Gated Mércn si, 19
lst Ehe\ \

in each casé aS in effect on the date hereof.

"Senior Term Loans" means the loans identified as
Senior Term Loans in Schedule I.

"Senior Term Notes" means promissory notes of the
Borrower, substantially in the form of Exhibit A hereto,
evidencing the obligation of the Borrower to repay the
Senior Term Loans.

15


Page 18

(b\(4) Obligations" means the portions
of the Tranche A, Tranche BS and Tranche C Loans {including
Deferred Interest thereon) and Tranche D Obligations
utstanding immediately prior to the Effective Date as (b)(4)

(b)(4) jobligations" under the Original Loan Agreement.

"Federal Funds Rate" means, for any day, the rate
per annum (rounded upward, if mecessary, to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on
such day, as published by the Federal Reserve Bank of New
York on the Business Day next succeeding such day; provided
that (i) if such day is not a Business Day, the Federal
Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if
no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be

(b)(4) the average rate quoted col ___lon such day on such
transactions as determined by the Agent.

"Fiscal Year’ means a fiscal year of the Borrower
ending on March 31. Fiscal Years are identified by the year
in which they end, e.g., "Fiscal 1993" means the Fiscal Year
ending on March 31, 1993.

"Foreign Plan Cash Payments" means, for any
period, cash payments made during such period by the
Borrower or any of its Consolidated Subsidiaries under the
Foreign Plans required by applicable law or the terms of the
Foreign Plans ag in effect immediately after the Effective
Date.

"Foreign Plan Expenses" means, for any period, all
expenses of the Borrower and its Consolidated Subsidiaries
accrued for such period with respect to the Foreign Plans.

(b)(4)

"Foreign Plans" means J |

\and the trustées of such Plan dated March 29, 1991),

lan.

(b\(4)

"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or
indirectly guaranteeing any Debt or other obligation of any
other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance

10


SECTION 8.01
8.02
8,03

8.04
8.05
8.06
8.07
8.08
8.09
8.10
SCHEDULE I
SCHEDULE IT
Exhibit A

Exhibit B

Page 7

Consultation with Experts . .- ;

Liability of Agent and Collateral
Agents Soka

Indemnificati on

Credit Decision .

Successor Agent and Collateral
Agents . -

Appointment of “cotiateral
Co-Agents . +--+ + soe

agent's Fee se es

ARTICLE VIII
MISCELLANEOUS

Notices -
No Waivers - oe
Expenses; Documentary Taxes;
Indemnification .. +--+: +
Sharing of Set-Offs ..--+-:
Amendments and Waivers .- + -
Successors and Assigns .- -
Governing Law; Submission to
Jurisdiction ..- eee ee ee
Counterparts; Integration eee ee
Confidential Information .- +++
Waiver of Jury Trial .-+«--

Restructuring Schedule
Amortization Schedule
Form of Senior Term Note

Form of Revenue Performance
Certificate

(b)(4) |

Exhibit D

Exhibit EB

Exhibit F

ESOP II Amended Security
Agreement

Opinion of Ropes & Gray

Opinion of Davis Polk &
Wardwell

iii

rd

54
$5
56

56
56

57
57

57
59
59
61

62
63
63
63


Page 136

the obligations of the Assignor under the Loan Agreement
with respect to [designate Senior Term Loan or Revenue
Performance Obligation] to the extent of the Assigned
Amount, including the purchase from the Assignor of the
corresponding portion of the [principal] amount of the
[designate Senior Term Loan or Revenue Performance
Obligation] held by the Assignor outstanding at the date
hereof. Upon the execution and delivery hereof by the
Assignor, the Assignee, the Borrower and the Agent and the
payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the
date hereof, succeed to the rights and be obligated to
perform the obligations of the Assignor, and shall become a
Lender under the Loan Agreement, with respect to [designate
Senior Term Loan or Revenue Performance Obligation] of the
Assignee in an amount equal to the Assigned Amount, and (ii)
the Assignor shall be released, as of the date hereof, from
its obligations under the Loan Agreement to the extent such
obligations have been assumed by the Assignee. The
assignment provided for herein shall be without recourse to

the Assignor.

SECTION 3. Payments. As consideration for the
assignment and sale contemplated in Section 2 hereof, the
Assignee shall pay to the Assignor on the date hereof in
Federal funds an amount equal to $ . Each of the
Assignor and the Assignee hereby agrees that if it receives
any amount under the Loan Agreement which is for the account
of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to
such other party.

SECTION 4. Delivery of Notes and Certificates.
Pursuant to Section 8.06(c) of the Loan Agreement the
Borrower agrees to execute and deliver a [Senior Term
Note/Revenue Performance Certificate] payable to the order
of the Assignee to evidence the assignment and assumption
provided for herein.

SECTION 5. Non-Reliance on Assignor. The
Assignor makes no representation or warranty in connection
with, and shall have no responsibility with respect to, the
solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the
obligations of the Borrower in respect of the Loan
Agreement, any Senior Term Note or any Revenue Performance
Certificate. The Assignee acknowledges that it has,
independently and without reliance on the Assignor, and
based on such documents and information as it has deemed
appropriate, made its own credit analysis.and decision to
enter into this Agreement and will continue to be



Page 114

If moneys are to be applied pursuant to clause (ii) above in
an amount that is not sufficient to pay all the Secured
Obligations in full (a ‘partial Payment"), the parties
intend that the Loan Exposures of the several ESOP II Banks
shall be reduced by the application of amounts available for
distribution under the Original Director Guarantees and
Original Director Security Documents before their Loan
Exposures are calculated for purposes of allocating such
Partial Payment among the ESOP IT Banks pursuant to this
Agreement, provided that (x) the parties secured under this
Agreement shall have no right to require any Collateral
Agent or any other party entitled to the benefit of or
secured under any Original Director Guarantee or any
Original Director Security Document to take any action
thereunder and (y) such Partial Payment shall not be delayed
for more than 30 days by reason of the provisions of this
Section. Accordingly, no Partial Payment shall be made
under this Agreement prior to the earlier of (i) the date on
which all moneys to be applied to the Secured Obligations
pursuant to the Original Director Guarantees and Original
Director Security Documents have been so applied or (ii) 30
days after the Foreclosure Event giving rise to such Partial
Payment occurs. If a Partial Payment is made under this
Section 6.04 and within two years thereafter a further
payment is made with respect to the Secured Obligations
under the Original Director Guarantees or Original Director
Security Documents, the Collateral Agent at the request of
any ESOP II Bank shall recalculate the Loan Exposures of the
ESOP II Banks as if such further payment under the Original
Director Guarantees or Original Director Security Documents
had been made prior to such Partial Payment hereunder, and
each ESOP II Bank which received a proportionately greater
portion of such Partial Payment than it would have received
on the basis of the Loan Exposures as so recalculated shall
purchase such participations in the Senior Term Loans
included in the continuing ESOP II Loans of the other ESOP
II Banks, and such other adjustments shall be made, as may
be required from time to time, so that such Partial Payment
shall be shared by the ESOP II Banks ratably in proportion
to their Loan Exposures as so recalculated.

The Collateral Agent may make distributions
hereunder in cash or in kind or, on a ratable basis, in any
combination thereof.

ARTICLE VII
MISCELLANEOUS

SECTION 7.01. Amendments and Waivers. Any
provision of this Agreement may be amended or waived if, but

14


Page 73

RECOLL MANAGEMENT CORPORATION,
as Attorney-in-fact for the
Federal Deposit Insurance
Corporation, as Receiver for
New Bank of New England, N.A.

By /s/ Brian Shelton
Title: Vice President

245 Summer Street

Boston, MA 02110

Attention: Brian Shelton
Facsimile Number:617-573-7993

(b)(4)

By (b)(4),(b)
Title: Vice President & (6)
Group Leader
(b)(4)
(b)(4)
syL_ (xA,00)
Title: Vice President
Address: | (b)(4)
(b)(4)

65


Page 211

The Commonweallh: of Massachusells

Office of the Seacary of Hate
Hate House; Boston 02433

MICHAEL J. CONNOLLY
SECRETARY OF STATE

March 25, 1993

TO WHOM IT MAY CONCERN:
i nereby certify that according to the records of this office
Bain & Company, inc.

is a domestic corporation organized on May 5, 4992, under the General Laws of the
Commonwealth of Massachusetts.

| further certify that no proceedings are presently pending under the
Massachusetts General Laws Chapter 156B section 101 for said corporations dissolution;
that no articles of dissolution have been filed by said corporation; that, said corporation
has filed all annual reports, and paid all fees with respect to such reports, and so far as
appears of record said corporation has legal existence and is in good standing with this

office.
IN TESTIMONY of which, I have hereunto

affixed the Great Seal of
the Commonwealth on the

date first above written.

Podelf ontly

Secretary of State

This certificate is nota tax clearance. Certificates certifying all taxes due are payable to
the corporation have been paid or provided for, are issued by the Departrnent of

Revenue.
Form C.D. 504.


(b)(4)

(b\(4)

(b)(4)

Page 28

such agreements to the Loan Agreement shall be deemed
to refer to this Agreement, and the Collateral subject
to such agreements shall secure the Senior Term Loans
as provided in such agreements after giving effect to
such changed references.

Upon receipt of its Senior Term Notes and Revenue
Performance Certificates delivered pursuant to Section
2.03(i), each Bank shall cancel all Notes and Tranche D
Certificates issued to it under the Original Loan Agreement.

SECTION 2.03 Conditions to Effectiveness. The
effectiveness of this Agreement is subject to the
satisfaction of the following conditions:

(a) Sufficient copies for distribution to
each Lender of each of the following agreements
shall have been executed and delivered by all of
the proposed parties thereto, all conditions to
the effectiveness of such agreements shall have
been met or waived prior to or concurrently with
the effectiveness of this Agreement, all
obligations of the parties to such agreements
required to be performed prior to or concurrently
with the effectiveness of this Agreement shall
have been performed and all representations and
warranties of the parties to such agreements shall
be true in all materiai respects on the Effective
Date as if made on and as of the Effective Date:

(ii) the ESOP II Amended Security Agreement;
and

(c) e@ Borrower shall have paid an aggregate
amount of in cash to the Lenders, allocated
as provided in Schedule I.

(a) The Borrower shall have paid all accrued
interest (other than Deferred Interest) on the Tranche
A, B and C Loans, together with interest accrued on
Deferred Interest, which is unpaid on the Effective
Date.

(e) No Default shall have occurred and be
continuing under this Agreement or the Original Loan
Agreement .

20


Page 147



Page 243

ROPES & GRAY

submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies.

with your permission, (i) we express no opinion in clause
(c) of paragraph 4 below as to whether compliance by the Borrower
with provisions of the Restructuring Documents obligating it to
disclose information to the Lenders or make its books and records
available for inspection by the Lenders or otherwise divulge
information to the Lenders (collectively, the "Disclosure
Provisions") may contravene any confidentiality or similar
agreements that may exist between the Borrower and its clients
(the "Confidentiality Agreements") and {ii) we express no opinion
in paragraph 2 below as to whether the Disclosure Provisions are
enforceable to the extent that compliance therewith will
contravene any of the Confidentiality Agreements.

We call your attention to the fact that each of the
Restructuring Documents provides that it is to be governed by and
construed in accordance with the internal laws of the State of
New York and we understand that you are relying on the advice of
your own counsel with respect to all matters involving New York
iaw. We are of the opinion that 4 Massachusetts court, or
federal court sitting in Massachusetts would, under conflict of
law principles observed by the courts of Massachusetts, give

effect to such provision.

The opinions expressed below are limited to matters governed
by the internal laws of The Commonwealth of Massachusetts and the
federal laws of the United States. With respect to matters
governed by the laws of the State of New York, we have relied,
without independent investigation, upon the opinion to you dated
this date of Davis Polk & Wardell, a copy of which has been
delivered to you. However, if such matters were governed by the
laws of The Commonwealth of Massachusetts, we would be prepared
to give the same opinions set forth below without reliance on

other counsel.
Based on the foregoing, we are of the opinion that:

1. The Borrower is a corporation duly incorporated and
validly existing under the laws of The Commonwealth of
Massachusetts, and is in good standing with the Secretary of
State of The Commonwealth of Massachusetts, with corporate powers
adequate for the execution, delivery and performance of each of
the Restructuring Documents and for the carrying on of the
pusiness now conducted by it.

2. Each of the Restructuring Documents has been duly
authorized, executed and delivered by the Borrower and (subject
to the qualifications stated in the unnumbered paragraphs below
following the numbered paragraphs hereof) is a valid and binding

CIBOPIN2 BC ~2-


(b)(4)

(b)(4)

(b)(4)

(b)4)

(b)(4)

Page 14

"Collateral" means (i) when used with respect to a
specific Collateral Document, the "Collateral" (as defined
therein) or (ii) when used with respect to the Collateral
Documents generally, all "Collateral" {as defined therein).

w

"Collateral Agent" means, ag
require, (i) the Collateral Agent under
ad) the Collateral Agent under the

TT Amended Security Agreement, (iii) the Collateral Agent
under the Borrower Pledge and Security Agreement or (iv) the
Collateral Agent under the Subsidiary Guarantee and Security
Agreements. "Collateral Agents" means all of the foregoing
Collateral Agents.

"Collateral Documents" means

the ESOP II Amended Security Agreement,

the Borrower Pleage and Security Agreement and the
Subsidiary Guarantee and Security Agreements.

"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which would be
consolidated with those of the Borrower in its consolidated
financial i a tg wer repared as of

uch date;
eans the portions of
Zncluded in the Senior Term Loans

ana Revenue Perro gult of the
restructuring of the pursuant to

Section 2.02{a).

"Continuing ESOP II Loans" means the portions of
the Existing ESOP II Loans included in the Senior Term Loans
and Revenue Performance Obligations as a result of the
restructuring of the Existing ESOP II Loans pursuant to
Section 2.02{a).

"Continuin: means the

portions of the Obligations included in
the Senior Term al avenue Performance Obligations as
a result of the restructuring of the/ —

Obligations pursuant to Section 2.02[ay-

"Cumulative Cash Flow" means, at the end of any
Fiscal Year, the sum of Cash Flow for such Fiscal Year and
Cash Flow for each previous Fiscal Year beginning on or
after April 1, 1993.

"Current Assets" means, at the end of any Fiscal
Year, the consolidated current assets of the Borrower and

(b)(4)

(b)(4)

(b)(4)

(b\(4)


Page 145



Page 188

e accelera-

A

BAIN & company, Ty

made to the Loan Agreement for provisions for thi
tion of the maturity hereof.

(b)(4).(b)
(6)

By|
T 7 (b)(4).(b
itre Treasure 6) ).(b)



(b)4)

(b)(4)

(b\(4)

Page 33

of the chief executive officer of the Borrower setting forth
in reagonable detail the calculation of Incremental Revenue
for such Fiscal Year.

(b) Within three Business Days after the delivery
of each certificate pursuant to subsection (a) above, the
Borrower shall make a payment of amounts outstanding
hereunder (an ‘Incremental Revenue Payment") in an amount
equal to 10% of Incremental Revenue (if any) for the
preceding Fiscal Year; provided that no such Incremental
Revenue Payment shall be made to the extent that it would
cause the aggregate amount of Revenue Performance
Obligations paid pursuant to Section 3.05 to exceed

Each such Incremental Revenue Payment shall be

applied as set forth in Sections 3.03(c) and 3.05.

(ce) The Borrower's "Incremental Revenue Basket"
shall initially be $0. Upon delivery of the certificate
required by subsection (a) above with respect to any Fiscal
Year, there shall be added to the Incremental Revenue Basket
an amount equal to 10% of Incremental Revenue for such
Fiscal Year. So long as no Event of Default shall have
occurred and be continuing, the Borrower may make Capital
Expenditures, Restricted Payments and Investments in an
aggregate amount not exceeding the Incremental Revenue
Basket, notwithstanding the provisions of Sections 5.05,
5.06 and 5.10. The Incremental Revenue Basket shall be
reduced by the amounts of (i) any payment made pursuant to
the preceding sentence, (ii) any payments made on or with
respect to Subordinated Obligations permitted by Section
5.22(b), (iii) any payments or loans made pursyant to
Section 5.22(d) and (iv) any deposit made into

permitted by Section 5.12(c), in @ach case on the date of
such payment or deposit. The Borrower shall deliver to each
Lender, within 30 days after the end of each quarter of each
Fiscal Year, a statement setting forth (i) the payments or
deposits (if any) made during such quarter from the
Incremental Revenue Basket, and (ii) the amount of the
Incremental Revenue Basket remaining unspent at the end of

such quarter.

SECTION 3.05. Applicati In ntal_Reven
Payments and Optional Prepayments. (a) Each Incremental

Revenue Payment made pursuant to Section 3.04(b) shall be
applied as follows:

(i) First, umtil all of the enue Performance
Obligations of Lenders other than have been paid in
full 9.4% to pay the Revenue Performance Obligations
of and the remaining 90.6% to pay the Revenue
Performance Obligations of the other Lenders, ratably

25

(b)(4)


Page 170

ments taken or received by the Collateral Agent as, or
in cotinection with, the Collateral;

(ii) to demand, sue for, collect, receive and give
acquittance for any and all monies due or to become due
upon or in connection with the Collateral;

(iii) to notify the Account Debtors of this Securi-
ty Agreement or direct the Borrower to notify the

Account Debtors of this Security Agreement and direct
them to make payment directly to the Collateral Agent;

(iv) to commence, settle, compromise, compound,
prosecute, defend or adjust any claim, suit, action or

proceeding with respect to, or in connection with, the
Collateral;

(v) to sell, transfer, assign or otherwise deal
in or with the Collateral or any part thereof, as fully
and effectually as if the Collateral Agent were the
absolute owner thereof;

(vi) to extend the time of payment of any or all
Accounts and to make any allowance and other adjust-
ments with reference thereto; and

(vii) to do, at its option but at the expense of
the Borrower, at any time or from time to time, all
acts and things which the Collateral Agent deems
necessary to protect or preserve the Collateral and to
realize upon the Collateral.

SECTION 6.02. Remedies upon Foreclosure Event.
If a Foreclosure Event shall have occurred and be continu-
ing, the Collateral Agent may exercise on behalf of the
Secured Parties (x) the rights available to a secured party
under the UCC and (y) the other rights available to the
Collateral Agent at law or equity. Without limiting the
generality of the foregoing, the Collateral Agent may, to
the extent permitted by applicable law, exercise any one or
more of the following remedies:

(a) The Collateral Agent personally or by agents
or attorneys shall have the right to take immediate
possession of the Collateral, or any portion thereof
(including any Books and Records), and for that purpose
may pursue the same wherever it may be found and enter,
with or without process of law and without breach of
the peace, any premises where any of such Collateral is

or may be located, and without charge or liability to

102/2h/27008/021/SEC.93/esoplT

10


Be}

(b)(4)

(b)(4)
(b)(4)

Page 190

SENIOR TERM NOTE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., 4
Massachusetts corporation (the "Borrower") promises to pay
on March 31, 2001 to the order of

Lender" fie Senior Térm Loan
aving a L of The Borrower
promises to pay interest on the ipal amount of
such Senior Term Loan on the dates and at the rate or rates

provided for in the Loan Agreement. All such payments of
xcincipal and interest shall be made in lawful money of the

United States in Feder: i

funds at the office

All prepayments of the principal thereof shall be
recorded by the Lender and, prior to any transfer hereof,
appropriate notationa to evidence chasgoregoing information
with respect to such Senior Term Lo: then outstanding shail

pe endorsed by the Lender on the s le attached hereto,
or ona continuation of such sche attached to and made a
wv that the faileke of the Lender to make

part nereof;
any such recordation or endorsement shall not affect the

obligations of the Borrower hereunder or der the Loan
Agreement. .

This note is one of the Senior Term Notes referred
to in the Amended and Restated Loan Agreement dated as of

March 31, 1993 among the Bo
i pages thereof and

as Agent (as the same may 0S qnencea cron cine co
7 "Loan Agreement") . Terms defined in the Loan
Agreement are used herein with the game meanings. The
Borrower shall prepay the principal amount hereof as and to
the extent provided dim the Loan Agreement. Reference is

(b)(4)


Page 102

as Agent, have agreed to further restructure the ESOP IT
Loans as provided for in the Amended and Restated Loan
Agreement dated as of even date herewith (as amended from
time to time after such date, the "Loan Agreement"); and

WHEREAS, in order to induce ESOP IT Banks to enter
into the Loan Agreement, the Borrower has agreed to amend
and restate the First Amended and Restated ESOP IL Security
Agreement as provided herein; and

WHEREAS, the First Amended and Restated ESOP It
Security Agreement will be so amended and, as so amended,
will be restated to read in full as set forth herein, as and
when provided in Section 7.09;

NOW, THEREFORE, the parties hereto agree as
follows:

ARTICLE TI

DEFINITIONS

SECTION 1.01. Definitions. Terms defined in the
Loan Agreement and not otherwise defined herein have, as
used herein, the respective meanings provided for therein.
The following additional terms, as used herein, have the
following respective meanings:

"Accounts" means all presently existing or here-
after acquired or created (i) rights of the Borrower to
receive the payment of money or other consideration arising
from the sale of goods or by virtue of services rendered,
whether or not earned by performance, whether or not billed
or recorded on the Books and Records of the Borrower, and
whether or not evidenced by or set forth in or arising out
of any present or future note, writing, instrument or
document, and all extensions and renewals of any thereof,
(ii) collateral security of any kind given by any Person
with respect to any of the foregoing and (iii) all rights
related thereto, including without limitation, those
assertable against all other Persons in addition to the
related Account Debtor. The term "Accounts" includes, in
any event, all accounts (within the meaning of the UCC) of
the Borrower.

"Account Debtor" means, with respect to any
Account, any Person obligated to make payment thereunder,
including without limitation any account debtor on such
Account.


Page 144



()(4)
Page 95



Page 223

Section 5.4 Lost, Mutilated, or Destro ed Certificates.
Subject to Section 8-405 of the Massachusetts Uniform Commercial
Code, as amended from time to time, the Board of Directors may
determine the conditions upon which a new certificate of stock
may be issued in place of any certificate alleged to have been
lost, mutilated or destroyed. It may, in its discretion, require
the owner of a lost, mutilated or destroyed certificate, or the
owner’s legal representative, to give a bond, with or without
surety, sufficient in its opinion to indemnify the corporation
against any loss, claim or expense which may arise by reason of
the issuance of a new certificate in place of such lost,
mutilated or destroyed stock certificate.

Section 5.5 Txansfer Agent and Registrar. The Board of
Directors may appoint 4 transfer agent or @ registrar, or both,
and require all stock certificates to bear the signature or
facsimile thereof of any guch transfer agent or registrar.

Unless the Board of Directors shall appoint a transfer agent,
registrar or other officer or officers for the purpose, the Clerk
shall be charged with the duty of keeping, or causing to be kept,
accurate records of all stock outstanding, stock certificates
issued, and stock transfers. Subject to any other rules which
may be adopted from time to time by the Board of Directors, such
records may be kept solely in the stock certificate books.

Section 5.6 Setting Record Date and Closing Transfer

Records. The Board of Directors may fix in advance a time not
more than sixty days before (i) the date of any meeting of the
stockholders or (ii) the date for the payment of any dividend or
the making of any distribution to stockholders or (iii) the last
day on which the consent or dissent of stockholders may be
effectively expressed for any purpose, as the record date for
determining the stockholders having the right to notice of, and
to vote at such meeting or any adjournment thereof, or the right
to receive such dividend or distribution, or the right to give
such consent or dissent. If a record date is fixed by the Board
of Directors, only stockholders of record on such date shall have
such rights notwithstanding any transfer of stock on the records
of the corporation after such date. Without fixing such record
date, the Board of Directors may close the transfer records of
the corporation for all or any part of such sixty-day period.

If no record date is fixed and the transfer books are not
closed, then the record date for determining stockholders having
the right to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the
day on which notice is given, and the record date for determining
stockholders for any other purpose shall be at the close of
business on the date on which the Board of Directors acts with

respect thereto.

- 10 =


Page 197

same meanings. Reference is m:
provisions for the prepayment
the maturity hereof.

ade to the Loan Agreement for
hereof and the acceleration of

gy

BAIN & company GNC.

Title: “pe asucel

(b)(4).(b)
(6)
(b)(4).(b)
(6)


(b)(4)
(b\(4)

(b)(4)

(b)(4)

(b\(4)

Page 15

its Consolidated Subsidiaries at the end of such Fiscal
Year, other than cash and Temporary Cash Investments.

"Current Liabilities” means, at the end of any
Fiscal Year, the consolidated current liabilities of the
Borrower and its Consolidated Subsidiaries at the end of
such Fiscal Year, other than (i) the current portion of long
term debt, (ii) deferred Officer Bonuses, (iii) the current
portion of deferred interest, (iv) the current portion of
the Bain Capital Obligation and (v) accrued ESOP expense.

"Debt." of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase
price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized
in accordance with generally accepted accounting principles,
(v) all Debt of others secured by a Lien on any asset of
guch Person, whether or not such Debt is assumed by such
Person, (vi) all obligations (whether contingent or
non-contingent) of such Person to reimburse any bank or
other Person in respect of amounts paid under letters of
credit or other similar instruments and (vii) all Debt of
others which is the subject of a Guarantee by such Person.

"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or
waived, become an Event of Default.

"Deferred Interest" means deferred interest
outstanding under the Original Loan Agreement immediately
prior to the Effective Date.

and its successors; provided that, if halt
assign all or any portion of its Senior Term Loan ani
Revenue Performance Obligation as permitted by Section 8.06,

the term shall mean, for purposes of payments with
respect to is Agreement, the Senior Note of or
the Revenue Performance Certificate o under Section

3.09, any holder of all or any portion of the Senior Term
Loan and Revenue Performance Obligation that were held by
immediately after the Effective Date.

"Effective Date" has the meaning specified in
Section 2.01.

f i ring Documents" means (i)
faa (ii) the Amended and

7

(b)(4)

(b)(4)
(b)(4)

(b)(4)


(b)(4)

(6)(4)
(b)(4)

(b)(4)

(b\(4)

(b\(4)

(b)(4)

Page 101

EXHIBIT D

SECOND AMENDED AND RESTATED ESOP II
SECURITY AGREEMENT

AGREEMENT dated as of March 31, 1993 between BAIN
& COMPANY, INC., a Massachusetts corporation (with its

uiccessors, the “Borrower"), and |
] as Collateral Agent hereunder;

WHEREAS, certain loans to the Borrower ("ESOP IT
Loans") were outstanding under a Loan Agreement dated as of
December 22, 1986, as amended, among the 3

named on the signature pages thereof and
_ as agent and the Borrower was
Abligated to reimburse

for a drawing

under a letter of credit issued by a Letter of
Credit and Reimbursement Agreement dated as of April 19,
1988 between the Borrower and {the "ESOP If

Reimbursement Obligation"); and

WHEREAS the Horrower, certain lenders and
as Agent, became parties
fo a Loan AQreement uated as_oL_cum 10, 1991 (as amended to
the date hereof, the "Original Loan Agreement") which
provided, among other things, for the restructuring of the
ESOP II Loans and the ESOP II Reimbursement Obligation; and

WHEREAS, in connection with the Original Loan
Agreement, the Borrower executed an Amended and Restated
ESOP II Security Aqreement dated as of June 10, 1991 between
the Borrower and
as collateral agent (as amended to the date nereéor, tne
"First Amended and Restated ESOP II Security Agreement"),
which First Amended and Restated ESOP II Security Agreement
amended and restated the documentation under which the ESOP
II Loans were originally secured; and

WHEREAS, the Borrower, the ESOP IT Banks (as

defined in the Loan Agreement referred to below), certain
other lenders and

(b)(4)

(b)(4)

Ke)

(b)(4)


Page 191

made to the Loan Agreement for provisions for the accelera-

ction of the maturity hereof.

>

BAIN & COMPANY, INQ?

(b)(4).(b)
(6)

By
FI (by(4).(0)
)



Page 106

SECTION 3.02. Location of Borrower's Principal
Place of Business and Books and Records. The Borrower's
principal place of business and principal executive office
is located at 2 Copley Place, Boston, Massachusetts. The
offices where the Borrower keeps all its Books and Records
is located at the same address.

ARTICLE IV

COVENANTS

The Borrower agrees that so long as any Secured
Obligation remains unpaid:

SECTION 4.01. Filing; Further Assurances. The
Borrower will, at its expense and in such manner and form as
the Collateral Agent may require, execute, deliver, file and
record any financing statement, continuation statement,
specific assignment or other paper and take any other action
that the Collateral Agent may reasonably request (including
without limitation the execution of security documents and
filings with respect to the Security Interests in or under
the laws of foreign countries), in order to create, pre-
serve, perfect, confirm, or validate any Security Interest
or to enable the Collateral Agent to exercise and enforce
its rights hereunder with respect to any of the Collateral;
provided that this Section 4.01 shall not require the
Borrower to (i) notify any Account Debtor of any Security
Interest prior to a Foreclosure Event or {ii) incur any
material expense. To the extent permitted by applicable
law, the Borrower authorizes the Collateral Agent to execute
and file, in the name of the Borrower or otherwise, any and
all UCC financing statements which the Collateral Agent in
its sole discretion may deem necessary or appropriate to
perfect or further perfect the Security Interests.

SECTION 4.02. Liens on Collateral. The Borrower
will not create or suffer to exist anv Lien (other than the
Liens under this Agreement, the
Agreement and the Borrower Pledge ana Security Agrecmency
any Collateral. Without limiting the generality of the
foregoing, if any Lien on all or any part of the Collateral
shall be filed pursuant to Section 4068 of ERISA ox Sec-
tion 6323 of the Internal Revenue Code or any other non-con-
sensual Lien on the Collateral shall come into existence,
the Borrower shall cause such Lien to be released within 30
days after such filing.

SECTION 4.03. Change of Principal Place of
Business and Books and Records. The Borrower will not

6

(b)(4)


(b\(4)

(b\(4)

VOTED:

CIBSEGCE.BC

Page 227

EXHIBIT B

BAIN & COMPANY, INC.

votes of the Board of Directors

That a Financing Committee of this Board of Directors
be and hereby is created, consisting of Colin F.
anderson and Kelt Kindick; and that such Financing
Committee have all power and authority of this Board of
Directors to take all action with respect to (i) the
proposed restructuring of this Corporation's
ahliaations under the existing loan agreement with

y and the other lenders

party thereto, Incrocing we out limitation the
approval and authorization of all agreements,
‘ 7” 4 athar documents relating thereto, and



Page 205

REVENUE PERFORMANCE CERTIFICATE

New York, New York
March 31, 1993

For value received, Bain & Company, Inc., 4
Massachusetts corporation (the "Borrower"), promises to pay
to the order of RECOLL MANAGEMENT CORPORATION (the "Lender")
the Revenue Performance Obligation in the amount of
$2,965,717.00 on the dates provided for, on the terms and
subject to the conditions set forth, in the Loan Agreement
referred to below. All such payments shall be made in
lawful money of the United States in Fed imme-

(b)(4) LZ

(b)(4)

diately available funds at the office of a

UY

All payments made with redgdet to such Revenue
Performance Obligation shall be recorded by the Lender and,
prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to guch
Revenue Performance Obligation then outstanding shall be
endorsed by the Lender on the schedule attached hereto, or
on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement.

This certificate is one of the Revenue Performance
Certificates referred to in the Amended and Restated Loan
Agreement dated as of March 31, 1993 among the ae He

lenders listed o! @ thereof and
as Agent (as the same

May be amen rom time to time, e@ "Loan Agreement").
terms defined in the Loan Agreement are used herein with the

(b\(4)

(b)(4)


(b)(4)

(b)(4)

(b)(4)

(b)(4)

Page 196

REVENUE PERFORMANCE CERTIFICATE

New York, New York
March 31, 1993

For value received, Bain & Company, Ine., a
Massachusetts corporation (the "Borrower") promises to pav
to the order of _\

erformance Obligation in

unt 3 dates provided for, on
the terms and jfions set forth, in the
Loan Agreement referred to! F Al1 such payments shall
be made in lawful money of the United States in Fe ral or
other immediately available funds at the office ©

All payments made with respect to such Revenue
Performance Obligation shall be recorded by the Lender and,
prior to any transfer hereof, appropriate notations to
evidence the foregoing information with respect to such
Revenue Performance Obligatig, en outstanding shall be
endorsed by the Lender on Ct edule attached hereto, or
on a continuation of such ‘dule attached to and made a
part hereof; provided thatsehe failure of the Lender to make
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Loan

Agreement .

This certificate is one of the Revenue Performance

certificates referred to in the amended and Restated Loan
Agreement dated as of March 31, 1993 among the Borrower, the
lenders listed on the siqnature eg thereof and \
as Agent (as
Lexy De eS EE ORE Ee e "Loan Agreement").

7
Terms defined in the Loan Agreement are used herein with the

€

(b\(4)


Page 122

obtained by the Borrower in connection with the execution,
delivery or performance of the Restructuring Documents.

6. Except as set forth in Exhibit J to the Loan Agreement,
to our knowledge, after having made inquiry of the Borrower but
without having investigated any governmental records or court
dockets, there is no governmental action or preceeding and no
litigation pending against the Borrower or any of its
Subsidiaries in which there is a reasonable possibility of an
adverse decision which could materially adversely affect the
business, consolidated financial position or consolidated results
of operations of the Borrower and its Consolidated Subsidiaries
considered as a whole or which places in question the validity or
anforceability of, or seeks to enjoin the performance of the
terms of, any of the Restructuring Decuments.

7. The Borrower is not an ‘investment company" within the
meaning of the Investment Company Act of 1940, as amended.

Our opinions that each of the Restructuring Documents being
delivered to you today is the valid and binding obligation of the
Borrower enforceable in accordance with ita terms, are subject to
(i) bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting the rights and remedies of creditors and
secured parties, (ii) general principles of equity, regardless of
whether applied in proceedings in equity or at law, and
(iid) limitations on certain of the remedial provisions of each
of the Borrower Security Agreements by reason of applicable law.
although such limitations do net in our opinion make the remedies
provided for therein (taken as a whole) {inadequate for the
practical realization of the benefits intended to be afforded
thereby. We express no opinion as to the existence of, or as to
the title of the Borrower te, any item of Collateral or as to the
priority or (except as set forth in paragraph 3 above) the
perfaction of any security interest created by the Borrower
Security Agreements. We call your attention to the following:

(i) the effectiveness of each financing statement referred
to in paragraph 3 above terminates five years after the
date of filing unless a continuation statement is filed
prior te such termination in accordance with Section
g-403 of the Uniform Commercial Code;

(ii) Section 9-402(7) of the Uniform Commercial Code
provides that if the Borrower so changes its name,
identity or corporate structure that a filed financing
statement becomes seriously misleading, the filing is
not effective to perfect a security interest in
collateral acquired by the Borrower more than four
months after such change unless a new appropriate
financing statement is filed before the expiration of
that period;

CaNGP ING. BE wae


Page 69

(y) After the Senior Term Loans shall have been
paid in full, "Relevant Consent Lenders" shall mean
Lenders holding more than 50% of the aggregate unpaid
amount of the Revenue Performance Obligations; provided that
with respect to any amendment of, or waiver or consent
relating to, Section 6.01(f), Section 6.01(j), Sections 5.02
to 5.06 (other than Section 5.06(a) (iii)), inclusive,
Section 5.11, Section 5.12 and Sections 5.14 to 5.24,
inclusive, "Relevant Consent Lenders" shall mean Lenders
holding more than 75% of the Revenue Performance
Obligations.

SECTION 8.06. Successors and Assigns. (a) The
provisions of this Agreement shail be binding upon and inure
to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this
Agreement without the prior written consent of all Lenders.

(b) Any Lender may at any time grant to one or
more banks or other Persons which are not competitors of the
Borrower (each a "Participant") participating interests in
any or all of its Senior Term Loan or its Revenue
Performance Obligation. In the event of any such grant by a
Lender of a participating interest to a Participant, whether
or not upon notice to the Borrower and the Agent, such
Lender shall remain responsible for the performance of its
obligations hereunder, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under
this Agreement. Any agreement pursuant to which any Lender
may grant such a participating interest shall provide that
guch Lender shall retain the sole right and responsibility
to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this
Agreement or any Collateral Document; previded that such
participation agreement may provide that such Lender will
not agree to any modification, amendment or waiver of this
Agreement described in clauses {i) to (v), inclusive, of
Section 8.05(a) without the consent of the Participant. An
assignment or other transfer which is not permitted by
subsection (c) or (d) below shall be given effect for
purposes of this Agreement only to the extent of a
participating interest granted in accordance with this

subsection (b).

(c) Any Lender may at any time assign to one or
more banks or other Persons which are not competitors cof the
Borrower (each an "Assignee") all or part of its rights and
obligations under this Agreement, its Senior Term Note or
its Revenue Performance Certificate and such Assignee shall
assume such rights and obligations, pursuant to an

61


(b)(4).(b)
(6)

Ropes & GRAY

(iii)

(iv)

(vy)

(vi)

Page 246

months after such change unless a new appropriate
financing statement is filed before the expiration of
that period;

if certain tangible Collateral is moved to a state in
which a financing statement has not been filed or if
the Borrower's location changes to a state or, in
states where a local filing is required, to another
county or city, in which a financing statement has not
been filed, Section 9-103 and Section 9-401(3), as the
case may be, of the Uniform Commercial Code require
that a new appropriate financing statement be filed in
such new state, county or city, as the case may be,
within four months after such move to continue
perfection of the security interest;

under certain circumstances described in Section 9-306
of the Uniform Commercial Code, the rights of a secured
party to enforce a perfected security interest in
proceeds of collateral may be limited;

under certain circumstances described in Sections 9-307
and 9-308 of the Uniform Commercial Code, purchasers of
collateral may take the same free of a perfected
security interest; and

Section 552 of the Bankruptcy Code limits the extent to
which property acquired by a debtor after the
commencement of a case under the Bankruptcy Code may be
subject to a lien resulting from any security agreement
entered into by the debtor before the commencement of
the case.

In addition, we call your attention to the fact that the
opinions expressed herein do not purport to cover, and we express
no opinion with respect to, the applicability of Section 548 of
the Bankruptcy Code or any comparable provision of state law.

The foregoing opinion is solely for your benefit and may not
be relied on by any person other than you and your counsel in
rendering its opinion with respect to the Loan Agreement.

CIBOPINZ BC

Very truly yours,

Ropes & Gray


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Page 204

Revenue Performance Certificate (cont'd)

REVENUE PERFORMANCE OBLIGATION AMOUNT AND PAYMENTS

Amount of

Revenue Amount of
Performance Obligation Notation
Obligation Repaid Made By

A

=ay

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(b)(4)

(b\(4)

(b)(4)

Page 20

"Lenders" means the Banks and
provided that, if any Lender that signed ENis Agreement as
originally executed (an "Original Lender") shall have
assigned all or any portion of its Senior Term Loan to one
or more Assignees as permitted by Section 8.06, the term
"Lender" shall mean, for purposes of Section 6.02(i), the
holders of all of the Senior Term Loans held by such
Original Lender immediately after the Effective Date, acting
together.

"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset. For the
purposes of this Agreement, the Borrower or any Subsidiary
shail be deemed to own subject to a Lien any asset which it
hag acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease
or other title retention agreement relating to such asset.

"Material Debt" means Debt (other than amounts
outstanding hereunder) of the Borrower and/or one or more of
its Subsidiaries, arising in one or more related or
unrelated transactions, in an aggregate principal amount
exceeding $1,000,000.

“Material Plan" means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of $250,000.

"Multiemployer Plan" means at any time an employee
pension benefit plan within the meaning of Section
4001 (a) (3) of ERISA to which any member of the ERISA Group
is then making or accruing an obligation to make
contributions or has within the preceding five plan years
made contributions, including for these purposes any Person
which ceased to be a member of the ERISA Group during such
five year period.

"Officer Bonuses" means. for anv Fiscal Year all

~honuges

Waraed by thé Borrower or any Subsidiary to
yesidents or directors of the Borrower or any

12

(b)(4)


(b)(4)

Page 164

"Secured Parties" means the Collateral Agent and
the holders from time to time of the Secured Obligations.

"Security Interests" means the security interests
in the Collateral granted hereunder to secure the Secured
Obligations.

"UCC" means at any time the Uniform Commercial
Code as in effect in the State of New York; provided that
if, by reason of mandatory provisions of law, the validity
or perfection of the Security Interests in any Collateral is
governed by the Uniform Commercial Code as in effect ina
jurisdiction other than New York, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such validity
or perfection (and for purposes of definitions related to

such provisions) .

Unless otherwise defined herein, or unless the
context otherwise requires, all terms used herein which are
defined in the UCC have the meanings therein stated.

ARTICLE II

THE SECURITY INTERESTS

SECTION 2.01. The Security Interests. In order
to secure the full and punctual payment of the Secured
Obligations in accordance with the terms thereof, the
Borrower hereby pledges, assigns, transfers, sets over and
delivers to the Collateral Agent for the benefit of the
Secured Parties, and hereby grants to the Collateral Agent a
security interest for the benefit of the Secured Parties in,
all of the Borrower's right, title and interest in and to,
whether presently existing or hereafter arising or acquired,
(i) all Accounts, (ii) all Books and Records, (iii) the
Proceeds Account (including without limitation all cash
deposited therein, and all claims, demands, chooses in
action and other rights of the Borrower in respect thereof),
(iv) all Temporary Cash Investments made pursuant to Section
5.03 and (v) all proceeds of any or all of the foregoing
(collectively, the Collateral"); it being understood that
the Borrower has granted a prior security interest in the
Accounts, the proceeds thereof and the Books and Records
under the Borrower's Security Agreement dated as of Decem-

ber 23, 1985, which prior security interest wilt emain in

effect under the|_ and that
the security interests Granted hereunder in all the Collat-

sd2/2h/27008/021/SEC.93/esopl I


Page 236



(b\(4)

Page 103

"Books and Records" means, as to any Account, all
books, ledgers and records and all computer programs, tapes,
discs, punch cards, data processing software, transactions
files, master files and related property and rights (except
computer and peripheral equipment) necessary or helpful in
enforcing, identifying or establishing the amount of such
Account, identifying the Account Debtor, or identifying or
establishing the amount of any proceeds of such Account.

"Collateral" has the meaning set forth in Section
2.01.

"Collateral Agent" means

jin its capacity as Collateral Agent

under this Agreement, and any successor in such capacity.

"Foreclosure Event" means any acceleration of the
maturity of the Senior Term Loans included in the Continuing
ESOP II Loans pursuant to the Loan Agreement or any
Bankruptcy Event of Default.

"Loan Exposure" means, at any time with respect to
any ESOP II Bank, the aggregate outstanding principal amount
of its Senior Term Loans included in the Continuing ESOP IT
Loans and all unpaid interest accrued thereon (including
deferred interest and interest accrued thereon) .

"Operating Accounts" has the meaning set forth in
Section 5.02.

"Partial Payment" has the meaning set forth in
Section 6.04.

"Proceeds Account” has the meaning set forth in
Section 5.01,

"Secured Obligations" means the obligations of the
Borrower to pay (i) all principal of and interest (including
without limitation any interest which accrues after any
Bankruptcy Event of Default) on the Senior Term Loans
included in the Continuing ESOP ITI Loans, (ii) all other
amounts payable by the Borrower under the Loan Agreement
with respect to the Senior Term Loans included in the
Continuing ESOP II Loans, (iii) all amounts payable by the
Borrower hereunder and (iv) any renewals or extensions of
any of the foregoing.

"Secured Parties" means the Collateral Agent and
the holders from time to time of the Secured Obligations.

"Security Interests" means the security interests
in the Collateral granted hereunder to secure the Secured
Obligations.

(b)(4)


(b)(4)

Page 25

prior to the Bffective Date {including Deferred Interest
thereon) .

"Tranche B Loans" means the Tranche B Loans
outstanding under the Original Loan Agreement immediately
prior to the #ffective Date (including Deferred Interest

thereon) .

"Tranche C Loan" means the Tranche C Loan
outstanding under the Original Loan Agreement immediately
prior to the Effective Date.

“Tranche D Obligations" means the Tranche D
Obligations outstanding under the Original Loan Agreement
immediately prior to the Effective Date.

"Unfunded Liabilities" means, with respect to any
Plan at any time, the amount (if any) by which (i) the
present value of all benefits under such Plan exceeds (ii
the fair market value of all Plan assets allocable to such
benefits (excluding any accrued but unpaid contributions),
all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess
represents a potential liability of a member of the ERISA
Group to the PBGC or any other Person under Title Iv of

ERISA.

*wWholly-Owned Consolidated Subsidiary" means any
Consolidated Subsidiary all of the shares of capital stock
or other ownership interests of which (except directors’
qualifying shares) are at the time directly or indirectly
owned by the Borrower.

"Working Capital" means, at the end of any Fiscal
Year, the amount by which Current Assets exceeds Current
Liabilities at the end of such Fiscal Year.

SECTION 1.02. Accounting Terms and Definitions.
(a) Unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be
prepared in accordance with generally accepted accounting
principles as_in effect on the date hereof (except for the
exclusion of applied on a
basis consistent with the most recent auaitéd consolidated
financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Lenders prior to the date
hereof, except for changes concurred in by the Borrower's
independent public accountants.

(b) Notwithstanding the provisions of subsection
(a) above, for purposes of the definitions of Adjusted

17


(b\(4)

(b)(4)
(b\(4)

(b)(4)

(b\(4)

(b)(4)

Page 54

SECTION 5.20. Restructuring Fees. The Borrower
shall not pay any investment banking, financial advisory or
similar fees with respect to the transactions contemplated
by this Agreement other than payment of the Bain Capital
Obligation to the extent permitted by Section §.22{(e).

SECTION 5.21.

(b) The increase in ESOP Cash Payments in any
Pieral Year resulting from the Eighth Amendment (b)(4)

shall not exceed the amounts shown if

Jackion 7.2=5ta7 vi the Bain & Company, Inc. Employee Stock
Ownership Plan as amended by such Eighth Amendment.

SECTION 5.22. Subordinated Obligations. (a) The

Borrower acknowledges and agrees that it will comply with
the subordination provisions governing its obligations under
(i) Section 7.07 of the Partnership's Security Agreement

gs of December 23, 1985 between Bain & Company and

as Collateral Agent, as in effect on the date
hereof, (ii) each of the Borrower's guarantees of the ESOP
Subordinated Debt and (iii) any other obligations of the
Borrower

which are by
rex Terms SUDUIUMMTteD to OpIigationgs OF tne Borrower to
the Lenders (collectively, together with the ESOP
Subordinated Debt, the "Subordinated Obligations”). The
Borrower will not amend any such gubordination provisions
and will not, except as permitted by subsections (b) and (d)
below, make any voluntary prepayment of, or redeem,
repurchase or otherwise acquire, any Subordinated
Obligations.

(ib) The Borrower may repurchase or otherwise
acquire Subordinated Obligations for consideration not

46


()(4)
Page 99



Page 242

Ropes & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS O2110-2624

30 KENNEDY PLAZA (617) 951-7000
PROVIDENCE, A. |. 02903
(401) 455-4400

TELECOPIER: (401) 455-4401

TELECOPIER: (617) 951-7050 WASHINGTON
(e202) 62
TELECOPIER: (202).626 -396!

March 31, 1993

To the Lenders and the Agent
pafarred to Below

(b)(4)

Ladies and Gentlemen:

This opinion is being furnished to you pursuant to
Section 2.03(j) of the Amended and Restated Loan Agreement dated
as of March 31, 1993 (the "Loan Agreement") between Bain &

Company, inc., 4 Massachusetts corporation (the "Borrower" the
Lenders listed on the signature pages thereof and b
as Agent, in connection with the (b\(4)

Closing held this day under the Loan Agreement. Terms defined in
the Loan Agreement and not otherwise defined herein are used
herein with the meanings so defined.

(b)(4)

We have acted as counsel to the Borrower in connection with
the Loan Agreement and the transactions contemplated thereby and
as such are familiar with the proceedings taken by it in
connection therewith.

(b)(4) We haye_narticinated in the preparation of the Loan
Agreement, \
Amended Security Agreement and The Senior TSIM NOTES ana Tne

Revenue Performance Certificates being delivered to the Lenders
today (collectively, the "Restructuring Documents"), and have
examined copies, executed by the Borrower of each of the
foregoing documents. We have also examined such certificates,
daocuments and records, and have made such examination of law, as
we have deemed necessary to enable us to render the opinions
expressed below. In addition, we have examined and relied as to
matters of fact upon representations and warranties contained in
the Loan Agreement and in certificates, copies of which have been

furnished to you.

For purposes of this opinion, we have assumed the
genuineness of all signatures, the authenticity of all documents

CIBOPINZ. BC


(b)(4)
(b)(4)

(b\(4)

(b)(4)

(b)4)

Page 37

(iii)}—pay to such additional amount as is
necessary toa_ensure that the net amount actually
received by after such withholding or deduction
(including witrmoldings or deduct? under clause (i)
above) will equal the full amount would have
received has not such withholding or deduction been
required.

If the Borrower fails to perform its obligations under

clauses (i) or (ii) above, the Borrower shall indemnify

on demand for any incremental taxes, interest or penalties
that may become payable as a result of such failure.

{b) shall use reasonable efforts to avoid the
effects of the relevant circumstances described in the first
sentence of subsection (a) above; provided that (i)
shall not be required to take any action that would result
in the imposition of any legal, regulatory or administrative
burdens deemed by[— |to be material (consistent with its
internal policies) orf any tax, governmental charge or other
additional costs, expenses or risks that are not required to

be reimbursed or indemnified by the Borrower here r, or
that in any other respect would he nrejudicial to nd.
(ii) the Borrower will reimburse pn-demand for any costs

or expenses incurred in connection with such actions
undercaken with the consent of the Bor

Notwithstanding the foregoing sentence compliance
with Section 3.08 shall be determined in accordance with the

terms thereof.
ARTICLE IV

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to each
Lender and the Agent that:

SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of
Massachusetts, and has all corporate powers and all material
governmental licenses, authorizations, consents and
approvals required to carry on its business as now
conducted.

SECTION 4.02. n vi
Authorization: No Contravention. The execution, delivery
and performance by the Borrower of this Agreement, the
Senior Term Notes, the Revenue Performance Certificates, the
the ESOP IT Amended

Security Agreement,

29

(b)(4)

(b)(4)

(b)(4)

(b)(4
a)

(b)(4)


Page 172

(ii) may either after entry, or without entry, proceed
by suit or suits at law or in equity to enforce such
rights and to foreclose upon the Collateral and to sell
all or, from time to time, any of the Collateral under
the judgment or decree of a court of competent
jurisdiction.

(ad) Upon the filing of a bill in equity or other
commencement of judicial proceedings to enforce the
rights of the Collateral Agent under this Agreement,
the Collateral Agent shall, to the extent permitted by
applicable law, without notice to the Borrower or any
party claiming through it, without regard to the sol-
vency or insolvency at the time of any Person then
liable for the payment of any of the Secured Obliga-
tions, without regard to the then value of the Colla-
teral and without requiring any bond from any complai-
nant in such proceedings, be entitled as a matter of
right to the appointment of a receiver or receivers
(who may be the Collateral Agent) of the Collateral, or
any part thereof, and of the profits, revenues and
other income thereof, pending such proceedings, with
such powers as the court making such appointment shall
confer, and to the entry of an order directing that the
profits, revenues and other income of the property
constituting the whole or any part of the Collateral be
segregated, sequestered and impounded for the benefit
of the Secured Parties, and the Borrower irrevocably
consents to the appointment of such receiver or
receivers and to the entry of such order; provided
that, notwithstanding the appointment of any receiver,
the Collateral Agent shall be entitled to retain
possession and control of all cash and instruments held
by or deposited with it pursuant to this Agreement.
Notwithstanding the foregoing, if the Collateral Agent
shall take possession of any Books and Records, it
shall make such Books and Records available to the
Borrower for inspection and copying as often as the
Borrower may reasonably request.

SECTION 6.03. Waiver and Estoppel. {a) The
Borrower agrees, to the extent it may lawfully do so, that
it will not at any time in any manner whatsoever claim or
take the benefit or advantage of any appraisal, valuation,
stay, extension, moratorium, turnover or redemption law, or
any law permitting it to direct the order in which the
Collateral shall be sold, now or at any time hereafter in
force, which may delay, prevent or otherwise affect the
performance or enforcement of this Agreement and hereby
waives all benefit or advantage of all such laws. The

1d2/2h/27008/021/SEC .93/esopll
12


Page 137

responsible for making its own independent appraisal of the
business, affairs and financial condition of the Borrower.

SECTION 6. Governing Law. This Agreement shall
be governed by and construed in accordance with the laws of

the State of New York.

SECTION 7. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.

IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed and delivered by their duly
authorized officers as of the date first above written.

[ASSIGNOR]

By.

Title:

[ASSIGNEE]

By.

Title:

BAIN & COMPANY, INC.

By

Title:

(b)(4)

as Agen!

By

Title:


(b)(4)

(b)(4).(b)
(6)

(b\(4)

(b)(4)

Page 21

Subsidiary for such Fiscal Year. Officer Bonuses for any
Fiscal Year (i) shall include any amounts payable for such
Fiscal Year in any succeeding Fiscal Year and shall exclude

"Original Director Guarantees" means the Original
Director Guarantee and Subordination Agreements dated June
10, 1991 and executed by the Original Directors, as such
agreements may be amended from time to time.

"Original Directors” means /

“Original Director Security Documents" has the
meaning set forth in Section 2.04.

"Original Loan Agreement* means the Loan Agreement
dated_ae of June 10. 1991 among the Borrower, the Lenders
and| as Agent, as
amended prior C0 tne cate Nereur.

"Participant" has the meaning set forth in Section
8.06.

“Partnership's Security Agreements" means (i) the
Partnership's Security Agreement dated as of December 23,
1985 between Bain & Company and] as collateral agent (b)(4)
and (ii) the Amended and Restate ership's Security
Agreement da £ December 22, 1986 between Bain &
Company—and as collateral agent, in each case as in
effect immediately prior to the Effective Date.

"PBGC" means the Pension Benefit Guaranty
Corporation or any entity succeeding to any or all of its
functions under ERISA.

"permitted Lease Amount" has the meaning set forth
in Section 5.09.

"Person" means an individual, a corporation, a
partnership, an association, a trust or any other entity or
organization, including a government or political
subdivision or an agency or instrumentality thereof.

"Plan" means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is
covered by Title IV of ERISA or subject to the minimum
funding standards under Section 412 of the Internal Revenue
Code and either (i) is maintained, or contributed to, by any

13


(b\(4)

()(4)
(b)(4)

Page 65

MISCELLANEOUS

SECTION 8.01. Notices. All notices, requests and
other communications to any party or other person to whom
notices are to be given hereunder shali be in writing
{including bank wire, telex, facsimile transmission or
similar writing) and shall be given to such party or other
person: (x) in the case of the Borrower, the Agent or any
Lender listed on the signature pages hereof, at its address
or facsimile number set forth on the signature pages hereof,
(y) in the case of any Assignee which becomes a Lender
hereunder pursuant to Section 8.06(c), at its address or
facsimile number set forth on the signature page of its
Assignment, if any, or (z) in the case of any such party or
other person, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice
to the Agent and the Borrower. Each such notice, request or
other communication shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the
facsimile number specified in this Section and confirmation
of transmission is received, (ii) if given by mail, three
Business Days after such communication is deposited in the
mails with first class postage prepaid, addressed as
aforesaid or (iii) if given by any other means, when
delivered at the address specified in this Section; provided
that notices to the Agent under Article III shall not be
effective until received.

SECTION 8.02. No Waivers. No failure or delay by
the Agent or any Lender in exercising any right, power or
privilege hereunder, under any Senior Term Note or under any
Revenue Performance Certificate shall operate as a waiver
thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights
and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.

SECTION 8.03. Expenses; Documentary Taxes:
Indemnification. (a) The Borrowe shall pay (i) all

reagonable out-of-pocket expenses of the Agent, including
agent ana fin disbursements of special counsel for the

Agent and in connection with the negotiation and
preparation of this Agreement, any waiver or consent
hereunder or under the Original Loan Agreement or any
Default or alleged Default hereunder or under the Original

Laan Agreement, (ii) reasonable out-of-pocket expenses of

Recoll andthe ee el reasonable fees and
adishhraements of special counsel for each of Recoll and
the in connection with the negotiation and
preparation of this Agreement and the Collateral Documents

57

(b)(4)


Page 221

Section 4.5 Treasurer and Assistant Treasurers. The
Treasurer shall have, subject to the direction of the Board of
Directors, general charge of the financial affairs of the
corporation and shall keep full and accurate records thereof,
which shall always be open to the inspection of the President or
of any director. The Treasurer shall render to the President or
to the Board of Directors, whenever either may require it, 4
statement of the accounts of the transactions of the Treasurer
and of the financial condition of the corporation. The Treasurer
shall perform such duties and have such powers additional to the
foregoing as the Board of Directors may designate.

Any Assistant Treasurer shall have such powers and duties as
the Board of Directors may decide.

Section 4.6 Clerk and Assistant Clerks. he Clerk shall
record in books kept for that purpose all votes, consents, and
the proceedings of all meetings of the stockholders and of the
Board of Directors. Record books of stockholders’ meetings shall
be open at all reasonable times to the inspection of any
stockholder. The Clerk shall notify the stockholders and
directors of all meetings in accordance with the by-laws.

In the absence of the Clerk from any meeting of the
stockholders or from any meeting of the Board of Directors, the
Assistant Clerk, if one be elected, or, if there be more than
one, the one designated for the purpose by the Board of
Directors, and otherwise a temporary clerk designated by the
person presiding at the meeting, shall perform the duties of the

Clerk.

Any Assistant Clerks shall have such other powers and duties
as the Board of Directors may decide.

Section 4.7 Vacancies. A vacancy in any office may be
filled by the Board of Directors by the election of a successor
to hold office for the unexpired term of the officer whose place

is vacant.

Section 4.8 Removal. All officers may be removed from their
respective offices with or without cause by vote of a majority of
the directors then in office. An officer may be removed for
cause only after a reasonable notice and opportunity to be heard
before the Board of Directors.

Section 4.9 Resignation. Any officer may at any time resign
from office by delivering a written resignation to the Board of
Directors, the Chief Executive Officer, the President or the
Clerk. Such resignation, unless a later date is specified
therein, shall take effect upon receipt by the addressee or at
the principal office of the corporation, and acceptance thereof
shall not be necessary to make it effective.

-8-


Page 134

EXHIBITM

EXISTING LIENS

b)(4

Coy) COLLATERAL AGENT

ALL ACCOUNTS AND ALL BOOKS AND RECORDS AND ALL PRODUCTS
AND PROCEEDS

ANY LIENS WHICH MAY EXIST UNDER THE AMENDED LEASE ON
COPLEY PLACE BETTERMENTS AND IMPROVEMENTS.


Page 118

(b)(4)

Ollateral

BY
Title: Vice President

18


Page 120

with your permission, (i) we express no opinion in clause
(¢) of paragraph 4 below as to whether compliance by the Borrower
with provisions of the Restructuring Documents obligating it to
disclose information to the Lenders or make its books and records
available for inspection by the Lenders or otherwise divulge
information to the Lenders (collectively, the "Disclosure
Provisions") may contravene any confidentiality or similar
agreements that may exist between the Borrower and its clients
(the “Confidentiality Agreements") and (ii) we express no opinion
in paragraph 2 below as to whether the Disclosure Provisions are
enforceable to the extent that compliance therewith will
contravene any of the Confidentiality Agreements.

We call your attention to the fact that each of the
Restructuring Decuments provides that it is to be governed by and
construed in accordance with the internal laws of the State of
New York and we understand that you are relying on the advice of
your own counsel with respect to all matters invelving New York
law. We are of the opinion that a Massachusetts court, or
federal court sitting in Massachusetts would, under conflict of
law principles observed by the courts of Mageachusetts, give

effect to such provision.

Ths opinions expressed below are limited to matters governed
by the internal lawa of The Commonwealth of Massachusetts and the
federal laws of the United States. With respect to matters
governed by the laws of the State of New York, we have relied,
without independent investigation, upon the opinion to you dated
this date of Davis Polk & Wardell, a copy of which has been
delivered to you. However, if euch matters were governed by the
laws of The Commonwealth of Massachusetts, we would be prepared
to give the same opinions set forth pelow without reliance on

other counsel.
Based on the foregoing, we are of the opinion that:

1. The Borrower is a corporation duly incorporated and
validly existing under the laws of The Commonwealth of
Massachusetts, and is in gcod standing with the Secretary of
State of The Commonwealth of Massachusetts, with corporate powers
adequate for the execution, delivery and performance of each of
the Restructuring Documents and for the earrying on of the
business now conducted by it.

2. Hach of the Restructuring Documents has been duly
authorized, executed and delivered by the Borrower and (subject
to the qualifications stated in the unnumbered paragraphs below
following the numbered paragraphs hereof) de a valid and binding
obligation of the Borrower, enforceable against the Borrower in

accordance with its terms.

CIRoPIMS. BC


Exhibit

Exhibit

Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit

Exhibit

Exhibit

H

rom &

go O 4 &

Page 8

Opinion of counsel to
Recoll

Debt of the Borrower outstanding
After the Effective Date

Investments
Litigation
Subsidiaries

Form of Report of Independent
Public Accountants

Existing Liens
Form of Assignment Agreement
Foreign Banks

Accounting Practices for
Recognition of Revenue

Monthly Financial Report

iv


()(4)
Page 97



(b)(4)

(b)(4)

Page 42

(b) as soon as available and in any event within

60 days after the end of each of the first three
quarters of each Fiscal Year, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries
as of the end of such quarter and the related
consolidated statements of operations, changes in
shareholders’ equity and cash flows for such quarter
and for the portion of the Fiscal Year ended at the end
of such quarter, setting forth in each case in
comparative form the figures for the corresponding
quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to {i) normal
year-end adjustments, (ii) the exception that such
financial statements shall be prepared on a pre-tax

is and

as to fairness of presentation,
accepted accounting principles and
consistency by the chief financial officer of the
Borrower and, in the case of the statements for the
second fiscal quarter of each Fiscal Year, reviewed by
Price Waterhouse or other independent public
accountants of nationally recognized standing;

(c) simultaneously with the delivery of each set
of financial statements referred to in clauses (a) and
(b) of this Section, (i) a reconciliation of such
financial statements to the basis and format of the
Base Projections and (ii) a consolidating balance sheet
of the Borrower and its Consolidated Subsidiaries as of
the date of such financial statements and the related
consolidating statements of operations for the periods
covered by such financial statements. all certified

the case of statements Other than year-end Statements,
to normal year-end adjustments and to the exception
that such statements shall be prepared on a pre-tax
basis) as to fairness of presentation, generally
accepted accounting principles and consistency by the
chief financial officer of the Borrower;

(a) gimultaneously with the delivery of each set
of annual financial statements referred to in clause
(a) of this Section, (i) a projection for each month of
the current Fiscal Year (based on a completed budget)
of income, cash flow, balance sheet items, severance
costs, Officer Bonuses, consulting compensation, vice
president and director base compensation and costs of
vice president and director fringe benefits, all
prepared on a basis and in a format consistent with the
Base Projections and (ii) a certificate of the chief
financial officer of the Borrower setting forth in

34


(b)(4)

Page 162

WHEREAS, the Borrower, the ESOP II Banks (as
defined in the Loan Agreement referred to below), certain

other lenders and

as Agent, have agreé

Loans as provided for in the Amended and Restated Loan
Agreement dated as of even date herewith (as amended from
time to time after such date, the "Loan Agreement"); and

WHEREAS, in order to induce ESOP II Banks to enter
into the Loan Agreement, the Borrower has agreed to amend
and restate the First Amended and Restated ESOP II Security
Agreement as provided herein; and

WHEREAS, the First Amended and Restated ESOP IT
Security Agreement will be so amended and, as so amended,
will be restated to read in full as set forth herein, as and
when provided in Section 7.09;

NOW, THEREFORE, the parties hereto agree as
follows:

ARTICLE I

DEFINITIONS

SECTION 1.01. Definitions. Terms defined in the
Loan Agreement and not otherwise defined herein have, as
used herein, the respective meanings provided for therein.
The following additional terms, as used herein, have the
following respective meanings:

"Accounts" means all presently existing or here-
after acquired or created (i) rights of the Borrower to
receive the payment of money or other consideration arising
from the sale of goods or by virtue of services rendered,
whether or not earned by performance, whether or not billed
or recorded on the Books and Records of the Borrower, and
whether or not evidenced by or set forth in or arising out
of any present or future note, writing, instrument or
document, and all extensions and renewals of any thereof,
(ii) collateral security of any kind given by any Person
with respect to any of the foregoing and (iii) all rights
related thereto, including without limitation, those
assertable against all other Persons in addition to the
related Account Debtor. The term "Accounts" includes, in
any event, all accounts (within the meaning of the UCC) of
the Borrower.

#42/2h/27908/021/SEC.93/esopl1


(b\(4)

(b\(4)

Page 129

EXHIBIT H

Debt of the Borrower Outstanding
Immediately After Effective Date

Balance Sheet Debt:

Guarantee of Subordinate Debt USS

Subrogated Debt US$

Off Balance Sheet Debt:

Letters of Comfort for
Bain Consultants, Inc. (Australia):

US$

disk:gw#1, doc:b:\gw013-

(b)(4)

(b)(4)

(b)(4)


(b)(4)

(b\(4)

Page 104

"yCC" means at any time the Uniform Commercial
Code as in effect in the State of New York; provided that
if, by reason of mandatory provisions of law, the validity
or perfection of the Security Interests in any Collateral is
governed by the Uniform Commercial Code as in effect ina
jurisdiction other than New York, "UCC" means the Uniform
Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such validity
or perfection (and for purposes of definitions related to
such provisions) .

Uniess otherwise defined herein, or unless the
context otherwise requires, all terms used herein which are
defined in the UCC have the meanings therein stated.

ARTICLE II

THE SECURITY INTERESTS

SECTION 2.01. The Security Interests. In order
to secure the full and punctual payment of the Secured
Obligations in accordance with the terms thereof, the
Borrower hereby pledges, assigns, transfers, sets over and
delivers to the Collateral Agent for the benefit of the
Secured Parties, and hereby grants to the Collateral Agent a
security interest for the benefit of the Secured Parties in,
all of the Borrower's right, title and interest in and to,
whether presently existing or hereafter arising or acquired,
(i) all Accounts, (ii) all Books and Records, (iii) the
Proceeds Account (including without limitation all cash
deposited therein, and all claims, demands, chooses in
action and other rights of the Borrower in respect thereof),
(iv) all Temporary Cash Investments made pursuant to Section
5.03 and (v) all proceeds of any or all of the foregoing
(collectively, the "Collaterai"); it being understood that
the Borrower has granted a prior security interest in the
Accounts, the proceeds thereof and the Books and Records
under the Borrower's Security Agreement dated as of Decem-
ber 23, 1985, which prior gecurity interest will remain in
effect under-the }) and that
the security interests granted hereunder in all the Collat-
aral are junior to the security interests granted under the

SECTION 2.02. Continuing Liability of the Bor-
rower. Anything herein to the contrary notwithstanding, the
Borrower shall remain liable to observe and perform all the
terms and conditions to be cbserved and performed by it
under any contract, agreement, warranty Or other obligation
with respect to the Collateral, all in accordance with and

4


(b)(4)

(b\(4)

Page 45

Fiscal Fiscal

Year Amount Year Amount
1994 1998

1995 1999

1996 2000

1997 2001

{b) Cash Flow for each Fiscal Year shall not be
less than the amount for such Fiscal Year set forth in the
table below. For purposes of this Section 5.02(b), Changes
in Working Capital shall be disregarded in calculating Cash
Flow.

Fiscal Fiscal

Year Amount. Year Amoun
1994 1998

1995 1999

1996 2000

1997 2001

SECTION 5.03. Adjusted Expense Ratio. At the end
of the first quarter of Fiscal 1994 and each quarter
thereafter, Adjusted Expenses for the four quarters then
ended shall not exceed the sum of the percentages of the
amounts of Revenue for such four quarters set forth in the

table below:

Revenue Percentage
First $120,000,000 83%
Amount above $120,000,000

up to $160,000,000 TS%
Amount above $160,000,000 73%

37

(b)(4)

(b)(4)