guaranty between the Borrower and the Lender or by the Borrower in favor of the
Lender, whether now in effect or hereafter entered into.
"Senior Funded Indebtedness" means the sum of all Liabilities of the Borrower
and each Subsidiary for borrowed money, including all Advances, the L/C Amount,
and all Liabilities under the IBM Facility, but excluding any Liabilities under
any Swap Contract.
"Swap Contract" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any Master Agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of Master Agreement, including any such
obligations or liabilities under any Master Agreement.
"Total Funded Indebtedness" means the sum of (i) all Liabilities of the Borrower
and each Subsidiary for borrowed money, including all Senior Funded Indebtedness
and subordinated indebtedness for borrowed money, but excluding any Liabilities
under any Swap Contract and (ii) the aggregate payments required to be made by
the Borrower and each Subsidiary at any time under any lease that is considered
a capitalized lease under GAAP.
2.
NO OTHER CHANGES.
EXCEPT AS EXPLICITLY AMENDED BY THIS
AMENDMENT, ALL OF THE TERMS AND CONDITIONS OF THE CREDIT AGREEMENT SHALL REMAIN
IN FULL FORCE AND EFFECT AND SHALL APPLY TO ANY ADVANCE OR LETTER OF CREDIT
THEREUNDER.
3.
SENIOR INDEBTEDNESS.
THE BORROWER HEREBY ACKNOWLEDGES AND AGREES
THAT, BOTH PRIOR TO AND AFTER THE DATE ON WHICH THIS AMENDMENT BECOMES
EFFECTIVE, THE BORROWER'S OBLIGATIONS TO THE LENDER, INCLUDING WITHOUT
LIMITATION THE OBLIGATIONS, ARE "SENIOR INDEBTEDNESS" (AS DEFINED IN THE
INDENTURE, DATED AS OF DECEMBER 2, 2003 BETWEEN THE BORROWER
2
AND WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS TRUSTEE (THE
"INDENTURE")), FOR PURPOSES OF THE INDENTURE.
4.
CONDITIONS PRECEDENT.
THIS AMENDMENT SHALL BE EFFECTIVE WHEN THE
LENDER SHALL HAVE RECEIVED AN EXECUTED ORIGINAL HEREOF, TOGETHER WITH THE
ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS SET FORTH AT THE END OF THIS
AMENDMENT, DULY EXECUTED BY EACH GUARANTOR, EACH IN SUBSTANCE AND FORM
ACCEPTABLE TO THE LENDER IN ITS SOLE DISCRETION.
5.
REPRESENTATIONS AND WARRANTIES.
THE BORROWER HEREBY REPRESENTS
AND WARRANTS TO THE LENDER AS FOLLOWS:
(A)
THE BORROWER HAS ALL REQUISITE POWER AND AUTHORITY TO EXECUTE THIS
AMENDMENT AND TO PERFORM ALL OF ITS OBLIGATIONS HEREUNDER, AND THIS AMENDMENT
HAS BEEN DULY EXECUTED AND DELIVERED BY THE BORROWER AND CONSTITUTE THE LEGAL,
VALID AND