Contract

EXHIBIT 10.1 [THE BANK OF NEW YORK LOGO] CREDIT AGREEMENT dated as of March 31, 2004 among THE BISYS GROUP, INC., as Borrower, The Lenders Party Hereto, FLEET NATIONAL BANK, JPMORGAN CHASE BANK, SUNTRUST BANK and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agents, and THE BANK OF NEW YORK, as Administrative Agent --------------------------- BNY CAPITAL MARKETS, INC., as Lead Arranger and Book Runner Bryan Cave LLP 1290 Avenue of the Americas New York, New York 10104-3300 TABLE OF CONTENTS
Page ---- ARTICLE 1. DEFINITIONS........................................................................................... 1 SECTION 1.1 DEFINED TERMS................................................................................. 1 SECTION 1.2 CLASSIFICATION OF LOANS AND BORROWINGS........................................................ 12 SECTION 1.3 TERMS GENERALLY............................................................................... 13 SECTION 1.4 ACCOUNTING TERMS; GAAP........................................................................ 13 ARTICLE 2. THE CREDITS........................................................................................... 13 SECTION 2.1 COMMITMENTS................................................................................... 13 SECTION 2.2 LOANS AND BORROWINGS.......................................................................... 13 SECTION 2.3 REQUESTS FOR REVOLVING AND TERM BORROWINGS.................................................... 14 SECTION 2.4 COMPETITIVE LOANS............................................................................. 14 SECTION 2.5 SWINGLINE LOANS............................................................................... 16 SECTION 2.6 FUNDING OF BORROWINGS......................................................................... 17 SECTION 2.7 TERMINATION, REDUCTION AND INCREASE OF REVOLVING COMMITMENTS.................................. 17 SECTION 2.8 REPAYMENT OF LOANS; EVIDENCE OF DEBT.......................................................... 18 SECTION 2.9 PREPAYMENT OF LOANS........................................................................... 19 SECTION 2.10 LETTERS OF CREDIT.......................................................................... 19 SECTION 2.11 PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF SETOFFS................................. 21 ARTICLE 3. INTEREST, FEES, YIELD PROTECTION, ETC................................................................. 22 SECTION 3.1 INTEREST...................................................................................... 22 SECTION 3.2 INTEREST ELECTIONS............................................................................ 23 SECTION 3.3 FEES.......................................................................................... 24 SECTION 3.4 ALTERNATE RATE OF INTEREST.................................................................... 24 SECTION 3.5 INCREASED COSTS; ILLEGALITY................................................................... 25 SECTION 3.6 BREAK FUNDING PAYMENTS........................................................................ 26 SECTION 3.7 TAXES......................................................................................... 26 SECTION 3.8 MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS................................................ 26 ARTICLE 4. REPRESENTATIONS AND WARRANTIES........................................................................ 27 SECTION 4.1 ORGANIZATION; POWERS.......................................................................... 27 SECTION 4.2 AUTHORIZATION; ENFORCEABILITY................................................................. 27 SECTION 4.3 GOVERNMENTAL APPROVALS; NO CONFLICTS.......................................................... 27 SECTION 4.4 FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE............................................... 27 SECTION 4.5 PROPERTIES.................................................................................... 28 SECTION 4.6 LITIGATION AND ENVIRONMENTAL MATTERS.......................................................... 28 SECTION 4.7 COMPLIANCE WITH LAWS AND AGREEMENTS........................................................... 28 SECTION 4.8 INVESTMENT AND HOLDING COMPANY STATUS......................................................... 28 SECTION 4.9 TAXES......................................................................................... 28 SECTION 4.10 ERISA...................................................................................... 28 SECTION 4.11 DISCLOSURE................................................................................. 29 SECTION 4.12 SUBSIDIARIES............................................................................... 29 SECTION 4.13 INSURANCE.................................................................................. 29 SECTION 4.14 LABOR MATTERS.............................................................................. 29 SECTION 4.15 SOLVENCY................................................................................... 29 SECTION 4.16 FEDERAL RESERVE REGULATIONS................................................................ 29 ARTICLE 5. CONDITIONS............................................................................................ 30 SECTION 5.1 CLOSING DATE.................................................................................. 30 SECTION 5.2 CONDITIONS TO EXTENSIONS OF CREDIT IN CONNECTION WITH ACQUISITIONS PERMITTED UNDER SECTION 7.4(L) OF THIS CREDIT AGREEMENT............................................................... 31 SECTION 5.3 EACH CREDIT EVENT............................................................................. 31 ARTICLE 6. AFFIRMATIVE COVENANTS................................................................................. 32 SECTION 6.1 FINANCIAL STATEMENTS AND OTHER INFORMATION.................................................... 32 SECTION 6.2 NOTICES OF MATERIAL EVENTS.................................................................... 32 SECTION 6.3 EXISTENCE; CONDUCT OF BUSINESS................................................................ 33 SECTION 6.4 PAYMENT OF OBLIGATIONS........................................................................ 33 SECTION 6.5 MAINTENANCE OF PROPERTIES..................................................................... 33 SECTION 6.6 BOOKS AND RECORDS; INSPECTION RIGHTS.......................................................... 33
SECTION 6.7 COMPLIANCE WITH LAWS.......................................................................... 33 SECTION 6.8 USE OF PROCEEDS............................................................................... 33 SECTION 6.9 INSURANCE..................................................................................... 34 SECTION 6.10 ADDITIONAL SUBSIDIARIES.................................................................... 34 SECTION 6.11 ENVIRONMENTAL COMPLIANCE................................................................... 34 ARTICLE 7. NEGATIVE COVENANTSS................................................................................... 34 SECTION 7.1 INDEBTEDNESS; EQUITY SECURITIES............................................................... 34 SECTION 7.2 LIENS......................................................................................... 36 SECTION 7.3 FUNDAMENTAL CHANGES; LINE OF BUSINESS; FISCAL YEAR............................................ 36 SECTION 7.4 INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND ACQUISITIONS..................................... 37 SECTION 7.5 ASSET SALES................................................................................... 38 SECTION 7.6 SALE AND LEASE BACK TRANSACTIONS.............................................................. 39 SECTION 7.7 HEDGING AGREEMENTS............................................................................ 39 SECTION 7.8 RESTRICTED PAYMENTS........................................................................... 39 SECTION 7.9 TRANSACTIONS WITH AFFILIATES.................................................................. 39 SECTION 7.10 RESTRICTIVE AGREEMENTS..................................................................... 39 SECTION 7.11 AMENDMENT OF MATERIAL DOCUMENTS............................................................ 40 SECTION 7.12 FINANCIAL COVENANTS........................................................................ 40 ARTICLE 8. EVENTS OF DEFAULT..................................................................................... 40 ARTICLE 9. THE ADMINISTRATIVE AGENT.............................................................................. 41 ARTICLE 10. MISCELLANEOUS........................................................................................ 43 SECTION 10.1 NOTICES.................................................................................... 43 SECTION 10.2 WAIVERS; AMENDMENTS........................................................................ 43 SECTION 10.3 EXPENSES; INDEMNITY; DAMAGE WAIVER......................................................... 44 SECTION 10.4 SUCCESSORS AND ASSIGNS..................................................................... 44 SECTION 10.5 SURVIVAL................................................................................... 46 SECTION 10.6 COUNTERPARTS; INTEGRATION; EFFECTIVENESS................................................... 46 SECTION 10.7 SEVERABILITY............................................................................... 46 SECTION 10.8 RIGHT OF SETOFF............................................................................ 46 SECTION 10.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS................................. 46 SECTION 10.10 WAIVER OF JURY TRIAL....................................................................... 47 SECTION 10.11 HEADINGS................................................................................... 47 SECTION 10.12 INTEREST RATE LIMITATION................................................................... 47 SECTION 10.13 TREATMENT OF CERTAIN INFORMATION........................................................... 47
SCHEDULES: Schedule 1.1 List of Existing Letters of Credit Schedule 2.1 List of Commitments Schedule 4.6 List of Disclosed Matters Schedule 4.12 List of Subsidiaries Schedule 4.13 List of Insurance Schedule 7.1 List of Existing Indebtedness Schedule 7.2 List of Existing Liens Schedule 7.4 List of Existing Investments Schedule 7.10 List of Existing Restrictions
EXHIBITS: Exhibit A Form of Assignment and Acceptance Exhibit B Form of Opinion of Counsel to the Loan Parties Exhibit C Form of Credit Request Exhibit D Form of Note Exhibit D-1 Form of Swingline Note Exhibit E Form of Guarantee Agreement Exhibit F Form of Compliance Certificate Exhibit G Form of Revolving Increase Supplement
\ CREDIT AGREEMENT, dated as of March 31, 2004, among THE BISYS GROUP, INC., the LENDERS party hereto, FLEET NATIONAL BANK, JPMORGAN CHASE BANK, SUNTRUST BANK and WACHOVIA BANK, NATIONAL ASSOCIATION, as Documentation Agents, and THE BANK OF NEW YORK, as Administrative Agent. The parties hereto agree as follows: DEFINITIONS Defined Terms As used in this Credit Agreement, the following terms have the meanings specified below: "ABR", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate. "Acquisition Related Contingent Payment" means a payment constituting all or a portion of the purchase price payable in connection with an acquisition permitted by Section 7.4(l), the maximum aggregate potential amount of which payment cannot be determined in advance of the occurrence or non-occurrence after the closing date of such acquisition of certain contingencies. "Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory Reserve Rate. "Administrative Agent" means BNY, in its capacity as administrative agent for the Lenders hereunder. "Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by the Administrative Agent. "Affiliate" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. "Agents" means, collectively, the Administrative Agent and the Documentation Agents. "Agreement Date" means the first date appearing in this Credit Agreement. "Alternate Base Rate" means, for any day, a rate per annum equal to the greater of (i) the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively. "Applicable Margin" means, at all times from and after the Agreement Date and during the applicable periods set forth below: (i) with respect to ABR Revolving Borrowings, the percentage set forth in the following table under the heading "Revolving ABR Margin", (ii) with respect to Eurodollar Revolving Borrowings and fees payable under Section 3.3(b), the percentage set forth in the following table under the heading "Revolving Eurodollar Margin and LC Fee", (iii) with respect to ABR Term Loan Borrowings, the percentage set forth in the following table under the heading "Term ABR Margin", and (iv) with respect to Eurodollar Term Loan Borrowings, the percentage set forth below under the heading "Term Eurodollar Margin":
When the Total Leverage Ratio is: - --------------------------------- greater Revolving Term than or Revolving Eurodollar Term ABR Eurodollar equal to and less than ABR Margin Margin and LC Fee Margin Margin - -------- ------------- ---------- ----------------- ------ ------ 2.00:1.00 0% 0.800% 0% 1.000% 2.00:1.00 2.50:1.00 0% 1.025% 0% 1.250% 2.50:1.00 3.00:1.00 0% 1.250% 0% 1.500% 3.00:1.00 0% 1.450% 0% 1.750%
Changes in the Applicable Margin resulting from a change in the Total Leverage Ratio shall be based upon the certificate most recently delivered under Section 6.1(c) and shall become effective on the date such certificate is delivered to the Administrative Agent. Notwithstanding anything to the contrary in this definition, (i) if the Borrower shall fail to deliver to the Administrative Agent such certificate on or prior to any date required hereby, then the Total Leverage Ratio shall be deemed to be 3.00:1.00 from and including such required date to the date of delivery to the Administrative Agent of such certificate, and (ii) during the period commencing on the Closing Date and ending on the date of delivery of the first such certificate, the Total Leverage Ratio shall be deemed to be the Total Leverage Ratio set forth in the certificate delivered under Section 5.1(l). "Applicable Percentage" means, with respect to any applicable Lender, the percentage of the total Revolving Commitments represented by such Lender's Revolving Commitment. If the Revolving Commitments have terminated or expired, an applicable Lender's Applicable Percentage shall be determined by dividing (i) the sum of such Lender's Revolving Credit Exposure plus the outstanding principal balance of such Lender's Competitive Loans by (ii) the sum of the aggregate amount of all applicable Lenders' Revolving Credit Exposures plus the outstanding principal balance of all applicable Lenders' Competitive Loans. "Approved Fund" means, with respect to any Lender that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor. "Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.4), and accepted by the Administrative Agent, substantially in the form of Exhibit A or in such other form as shall be acceptable to the Administrative Agent. "Availability Period" means the period from and including the Closing Date to but excluding the earlier of the Maturity Date and, if different, the date of termination of the Revolving Commitments. "BNY" means The Bank of New York. "Board" means the Board of Governors of the Federal Reserve System of the United States of America. "Borrower" means The BISYS Group, Inc., a Delaware corporation. "Borrowing" means (i) Revolving Loans or Term Loans, as applicable, of the same Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect, (ii) a Competitive Loan or a group of Competitive Loans of the same Type made on the same date and as to which a single Interest Period is in effect or (iii) a Swingline Loan. "Business Day" means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed, provided that, when used in connection with a Eurodollar Loan, the term "Business Day" shall also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market. "Capital Expenditures" of any Person means expenditures (whether paid in cash or other consideration or accrued as a liability) for fixed or capital assets (excluding any capitalized interest and any such asset acquired in connection with normal replacement and maintenance programs properly charged to current operations and excluding any replacement assets acquired with the proceeds of insurance) made by such Person. "Capital Lease Obligations" of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP. "Change in Control" means (a) ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the Securities and Exchange Commission thereunder as in effect on the date hereof), of shares representing 25% or more of the aggregate ordinary voting power or economic interests represented by the issued and outstanding equity securities of the Borrower on a fully diluted basis, (b) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the board of directors of the Borrower nor (ii) appointed by directors so nominated or (c) any change in control (or similar event, however denominated) with respect to the Borrower or any of the Subsidiaries shall occur under and as defined in any indenture or agreement in respect of Indebtedness in an outstanding principal amount in excess of $10,000,000 to which the Borrower or any Subsidiary is a party. "Change in Law" means (i) the adoption of any law, rule or regulation after the Agreement Date, (ii) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the Agreement Date or (iii) compliance by any Credit Party (or, for purposes of Section 3.5(b), by any lending office of such Credit Party or by such Credit Party's holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Agreement Date. "Class", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans, Term Loans, Competitive Loans or Swingline Loans, as applicable. "Closing Date" means the date on which the conditions specified in Section 5.1 are satisfied (or waived in accordance with Section 10.2). "Code" means the Internal Revenue Code of 1986. "Commitments" means, collectively, the Revolving Commitments, the Term Commitments, the Swingline Commitment and the Letter of Credit Commitments. "Compensation Financing" means, as to any Subsidiary which is a principal underwriter or distributor of shares of an Investment Company and is so designated in such Investment Company's then effective registration statement, either (i) the incurrence by such Subsidiary, as such principal underwriter or distributor, of Indebtedness, the proceeds of which are loaned by it to a broker or dealer entitled to compensation in connection with the sale of shares of such Investment Company, which loan is to be repaid by such broker or dealer at the time of its receipt of Contingent Deferred Sales Commissions or 12b-1 Fees to which such broker or dealer is entitled as a result of such sale or (ii) the sale by such Subsidiary as such principal underwriter or distributor of Contingent Deferred Sales Commissions or 12b-1 Fees to which such principal underwriter or distributor is entitled in connection with the sale of shares of such Investment Company. "Competitive Bid" means an offer by a Lender to make a Competitive Loan in accordance with Section 2.4. "Competitive Bid Rate" means, with respect to any Competitive Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making such Competitive Bid. "Competitive Bid Request" means a request by the Borrower for Competitive Bids in accordance with Section 2.4. "Competitive Loan" means a Loan in dollars made pursuant to Section 2.4. "Compliance Certificate" means a certificate, substantially in the form of Exhibit F. "Consolidated Adjusted EBITDA" means for any period, Consolidated EBITDA for such period plus the sum of, without duplication, to the extent deducted in determining Consolidated EBITDA, an amount equal to (i) the total fees paid to Persons in connection with the acquisition of rights permitted by Section 7.4(k) made after the Closing Date (not in excess of $50,000,000 in the aggregate for all such fees for all such acquisitions), minus (ii) the amount thereof which would be amortized during such period if such fees were amortizable and assuming a five year useful life thereof. "Consolidated EBITDA" means, for any period, Consolidated Net Income for such period plus the sum of, without duplication, (i) Consolidated Interest Expense, (ii) provision for income taxes and (iii) depreciation, amortization and all other non-cash charges for such period of the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP, each to the extent deducted in determining Consolidated Net Income for such period and minus the sum of non-cash gains for such period to the extent included in determining Consolidated Net Income for such period. "Consolidated Fixed Charges" means, for any period, the sum for such period of, without duplication, the following items, each for the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP: (i) all scheduled payments of principal of Indebtedness, (ii) all payments in respect of Capitalized Lease Obligations, (iii) Consolidated Interest Expense, (iv) Acquisition Related Contingent Payments (whether paid or accrued), and (iv) regularly scheduled principal payments on Subordinated Debt to the extent the same is permitted to be paid pursuant to the subordination provisions applicable thereto. "Consolidated Interest Expense" means, for any period, the sum of, without duplication, all interest (adjusted to give effect to all interest rate swap, cap, collar or other interest rate hedging arrangements and non-cash amortization of fees in connection therewith, all as determined on a consolidated basis in accordance with GAAP), paid or accrued in respect of Indebtedness of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP during such period. "Consolidated Net Income" means, for any period, the sum of, without duplication, net income of the Borrower and the Subsidiaries, determined on a consolidated basis in accordance with GAAP for such period. "Consolidated Net Worth" means, at any date of determination, the sum of all amounts which would be included under shareholders' equity on a consolidated balance sheet of the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP as at such date. "Consolidated Senior Debt" means, at any date of determination, the aggregate funded Indebtedness (including Capital Lease Obligations) on such date of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP minus Subordinated Debt. "Consolidated Total Assets" means, at any date of determination, the total assets of the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP as at such date. "Consolidated Total Debt" means, at any date of determination, the aggregate funded Indebtedness (including Capital Lease Obligations) on such date of the Borrower and the Subsidiaries on a consolidated basis in accordance with GAAP. "Contingent Deferred Sales Commissions" means amounts owed by an Investment Company to the principal underwriter or distributor thereof (as designated in such Investment Company's then effective registration statement under the 1940 Act) as repayment for expenses incurred by such principal underwriter or distributor pursuant to a written plan adopted by the shareholders of such Investment Company. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms "Controlling" and "Controlled" have meanings correlative thereto. "Credit Event" has the meaning assigned to such term in Section 5.3. "Credit Parties" means the Administrative Agent, the Issuing Bank and the Lenders. "Credit Request" means a Credit Request, substantially in the form of Exhibit C, or in such other form as shall be acceptable to the Administrative Agent. "Default" means any event or condition which constitutes an Event of Default or that upon notice, lapse of time or both would, unless cured or waived, become an Event of Default. "Disclosed Matters" means the actions, suits, proceedings and environmental matters disclosed in Schedule 4.6. "Documentation Agents" means Fleet National Bank, JPMorgan Chase Bank, SunTrust Bank and Wachovia Bank, National Association, in their capacities as documentation agent for the Lenders hereunder. "dollars" or "$" refers to lawful money of the United States of America. "Domestic Subsidiary" means a Subsidiary incorporated or organized under the laws of the United States of America, any State thereof or the District of Columbia. "Environmental Laws" means all laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, release or threatened release of any Hazardous Material or to health and safety matters. "Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any Loan Party directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. "Equity Interest" means (i) shares of corporate stock, partnership interests, membership interests and any other interest that confers on a Person the right to receive a share of the profits and losses of, or a distribution of the assets of, the issuing Person and (ii) all warrants, options or other rights to acquire any Equity Interest set forth in clause (i) of this defined term. "ERISA" means the Employee Retirement Income Security Act of 1974. "ERISA Affiliate" means any trade or business (whether or not incorporated) that, together with the Borrower or any Subsidiary, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. "ERISA Event" means (i) any "reportable event", as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (ii) the existence with respect to any Plan of an "accumulated funding deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived; (iii) the filing pursuant to Section 412(d) of the Code or Section 303(a) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (iv) the incurrence by the Borrower or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (v) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (vi) the incurrence by the Borrower or any ERISA Affiliate of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (vii) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA. "Eurodollar", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate. "Event of Default" has the meaning assigned to such term in Article 8. "Excluded Taxes" means, with respect to any Credit Party or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan Document, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Credit Party, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which such Loan Party is located and (c) in the case of a Foreign Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Credit Agreement (or designates a new lending office) or is attributable to such Foreign Lender's failure to comply with Section 3.7(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from such Loan Party with respect to such withholding tax pursuant to Section 3.7(a). "Exempt Subsidiary" means each Subsidiary for so long as it is (i) a registered broker-dealer, (ii) engaged in the insurance business and subject to net capital rules or regulations of any Governmental Authority which would treat the Guarantee under the Guarantee Agreement as a liability for purposes thereof if such Subsidiary was a Subsidiary Guarantor, or (iii) holding no assets and conducting no business. "Existing Letter of Credit" means any Letter of Credit set forth in Schedule 1.1, but not any renewal or extension thereof. "Facility Fee Percentage" means, at all times from and after the Agreement Date and during the applicable periods set forth in the following, the percentage set forth below under the heading "Facility Fee Percentage":
WHEN THE TOTAL LEVERAGE RATIO IS: --------------------------------- greater than or equal to and less than Facility Fee Percentage - ------------------------ ------------- ----------------------- 2.00:1.00 0.200% 2.00:1.00 2.50:1.00 0.225% 2.50:1.00 3.00:1.00 0.250% 3.00:1.00 0.300%
Changes in the Facility Fee Percentage resulting from a change in the Total Leverage Ratio shall be based upon the certificate most recently delivered under Section 6.1(c) and shall become effective on the date such certificate is delivered to the Administrative Agent. Notwithstanding anything to the contrary in this definition, (i) if the Borrower shall fail to deliver to the Administrative Agent such a certificate on or prior to any date required hereby, the Total Leverage Ratio shall be deemed to be 3.00:1.00 from and including such date to the date of delivery to the Administrative Agent of such certificate, and (ii) during the period commencing on the Agreement Date and ending on the date of delivery of the first such certificate, the Total Leverage Ratio shall be deemed to be the Total Leverage Ratio set forth in the certificate delivered under Section 5.1(l). "Federal Funds Effective Rate" means, for any day, a rate per annum (expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100 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 the day for which such rate is to be determined is not a Business Day, the Federal Funds Effective 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 such rate is not so published for any day, the Federal Funds Effective Rate for such day shall be the average of the quotations for such day on such transactions received by BNY as determined by BNY and reported to the Administrative Agent. "Financial Officer" means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower. "Fixed Charge Coverage Ratio" means, at any date of determination, the ratio of (i) an amount equal to Consolidated Adjusted EBITDA for the four fiscal quarter period ending on such date or, if such date is not the last day of a fiscal quarter, for the immediately preceding four fiscal quarter period minus Capital Expenditures made during such period by the Borrower and the Subsidiaries minus income taxes paid during such period to (ii) Consolidated Fixed Charges for such period. "Fixed Rate" means, with respect to any Competitive Loan (other than a Eurodollar Competitive Loan), the fixed rate of interest per annum specified by the Lender making such Competitive Loan in its related Competitive Bid. "Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed Rate. "Foreign Lender" means any Lender that is organized under the laws of a jurisdiction other than that in which the applicable Loan Party is located. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. "Foreign Subsidiary" means any Subsidiary that is not a Domestic Subsidiary. "GAAP" means generally accepted accounting principles in the United States of America. "Governmental Authority" means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, commission, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "Guarantee" of or by any Person (the "guarantor") means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation, provided that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guaranteed" has a meaning correlative thereto. "Guarantee Agreement" means the Guarantee Agreement, substantially in the form of Exhibit E, among the Borrower, the Subsidiary Guarantors and the Administrative Agent, for the benefit of the Credit Parties. "Guarantee Documents" means the Guarantee Agreement and each other guarantee agreement, instrument or other document executed or delivered pursuant to Section 6.10 to guarantee any of the Obligations. "Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law. "Hedging Agreement" means any interest rate protection agreement, foreign currency exchange agreement, commodity price protection agreement or other interest or currency exchange rate or commodity price swap, cap, collar, hedging or other like arrangement. "Increasing Lender" has the meaning assigned to such term in Section 2.7(d). "Indebtedness" of any Person means, without duplication, (i) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (iii) all obligations of such Person upon which interest charges are customarily paid, (iv) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (v) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accounts payable, obligations under equipment servicing agreements and license, royalty and similar fees, in each case incurred in the ordinary course of business), (vi) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (vii) all Guarantees by such Person of Indebtedness of others, (viii) all Capital Lease Obligations of such Person, (ix) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty and (x) all obligations, contingent or otherwise, of such Person in respect of bankers' acceptances. The Indebtedness of any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person's ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor. "Indemnified Taxes" means Taxes other than Excluded Taxes. "Indemnitee" has the meaning assigned to such term in Section 10.3(b). "Interest Election Request" means a request by the Borrower to convert or continue a Borrowing in accordance with Section 3.2. "Interest Payment Date" means (i) with respect to any ABR Loan, the last day of each March, June, September and December, (ii) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Loan with an Interest Period of more than three months' duration, each day prior to the last day of such Interest Period that occurs at intervals of three months' duration after the first day of such Interest Period, (iii) with respect to any Fixed Rate Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate Loan with an Interest Period of more than 90 days' duration (unless otherwise specified in the applicable Competitive Bid Request), each day prior to the last day of such Interest Period that occurs at intervals of 90 days' duration after the first day of such Interest Period, and any other dates that are specified in the applicable Competitive Bid Request as Interest Payment Dates with respect to such Borrowing, (iv) with respect to any Swingline Loan, the day that such Swingline Loan is required to be repaid and (v) with respect to all Loans, the Maturity Date. "Interest Period" means (a) with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect, and (b) with respect to any Fixed Rate Borrowing, the period (which shall not be less than seven days or more than 180 days) commencing on the date of such Borrowing and ending on the date specified in the applicable Competitive Bid Request, provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless, in the case of a Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in the case of a Revolving Borrowing or a Term Borrowing, thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing. "Investment Company" means an investment company registered under the 1940 Act. "Issuing Bank" means BNY, in its capacity as issuer of Letters of Credit. "LC Disbursement" means a payment made by the Issuing Bank pursuant to a Letter of Credit. "LC Exposure" means, at any time, (i) with respect to all of the applicable Lenders, the sum, without duplication, of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time and (ii) with respect to each applicable Lender, its Applicable Percentage of the amount determined under clause (i) above. "Lenders" means the Persons listed on Schedule 2.1 and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance or a Revolving Increase Supplement, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance. Unless the context otherwise requires, the term "Lenders" shall include the Swingline Lender. "Letter of Credit" means any Existing Letter of Credit and any New Letter of Credit. "Letter of Credit Commitment" means, with respect to the Issuing Bank, the commitment of the Issuing Bank to issue Letters of Credit hereunder. The amount of the Issuing Bank's Letter of Credit Commitment is $20,000,000. "LIBO Rate" means, with respect to any Eurodollar Borrowing for any Interest Period, the rate of interest per annum as determined by the Administrative Agent, equal to the rate, as reported by BNY to the Administrative Agent, quoted by BNY to leading banks in the London interbank market as the rate at which BNY is offering dollar deposits in an amount approximately equal to its ratable share of such Eurodollar Borrowing for dollar deposits with a maturity comparable to such Interest Period at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period. "Lien" means, with respect to any asset, (i) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement relating to such asset and (iii) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities. "Loan Documents" means this Credit Agreement, the Notes, the Guarantee Documents and the documentation in respect of each Letter of Credit. "Loan Parties" means the Borrower and the Subsidiary Guarantors. "Loans" means the loans made by the Lenders to the Borrower pursuant to this Credit Agreement. "Margin" means, with respect to any Competitive Loan bearing interest at a rate based on the Adjusted LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the Adjusted LIBO Rate to determine the rate of interest applicable to such Loan, as specified by the Lender making such Loan in its related Competitive Bid. "Margin Stock" has the meaning assigned to such term in Regulation U. "Material Adverse Effect" means a material adverse effect on (i) the business, assets, operations, prospects or condition, financial or otherwise, of the Borrower and the Subsidiaries, taken as a whole, (ii) the ability of any Loan Party to perform any of its obligations under any Loan Document, or (iii) the rights of or benefits available to any Credit Party under any Loan Document. "Material Indebtedness" means Indebtedness (other than Indebtedness under the Loan Documents) or obligations in respect of one or more Hedging Agreements, of any one or more of the Borrower and the Subsidiaries in an aggregate principal amount exceeding $10,000,000. For purposes of determining Material Indebtedness, the "principal amount" of the obligations of the Borrower or any Subsidiary in respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary, as applicable, would be required to pay if such Hedging Agreement were terminated at such time. "Maturity Date" means the earliest to occur of (i) March 31, 2008 and (ii) the date which is 185 days prior to the maturity of the Subordinated Notes, provided, however, that clause (ii) above shall not be applicable on and after the date on which the Subordinated Notes shall have been refinanced by the Subordinated Refinancing Notes. "Multiemployer Plan" means a multiemployer plan as defined in Section 4001(a)(3) of ERISA. "1940 Act" means the Investment Company Act of 1940, as amended, and the rules promulgated thereunder, as amended. "New Letter of Credit" means any letter of credit issued pursuant to this Credit Agreement and any successive renewals or extensions thereof. "Notes" means, collectively, (i) with respect to each Lender (other than the Swingline Lender), a promissory note evidencing such Lender's Loans payable to the order of such Lender (or, if required by such Lender, to such Lender and its registered assigns) substantially in the form of Exhibit D and (ii) with respect to the Swingline Lender a promissory note evidencing such Swingline Lender's Swingline Loans payable to the order of the Swingline Lender substantially in the form of Exhibit D-1. "Obligations" means (a) the due and punctual payment of (i) principal of and premium, if any, and interest (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, and (ii) each payment required to be made by the Borrower under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement of disbursements, interest thereon and obligations to provide cash collateral, and (iii) all other monetary obligations, including fees, commissions, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties to the Credit Parties, or that are otherwise payable to any Credit Party, under the Credit Agreement and the other Loan Documents, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Loan Parties under or pursuant to the Credit Agreement and the other Loan Documents and (c) unless otherwise agreed upon in writing by the applicable Lender party thereto, all obligations of the Borrower, monetary or otherwise, under each Hedging Agreement entered into with a counterparty and that was a Lender (or an Affiliate thereof) at the time such Hedging Agreement was entered into. "Other Taxes" means any and all current or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, the Loan Documents. "Participant" has the meaning assigned to such term in Section 10.4(e). "PBGC" means the Pension Benefit Guaranty Corporation referred to and defined in ERISA. "Permitted Encumbrances" means: (a)Liens imposed by law for taxes that are not yet due or are being contested in compliance with Section 6.4; (b)landlords', vendors', carriers', warehousemen's, mechanics', materialmen's, repairmen's and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 30 days or are being contested in compliance with Section 6.4; (c)pledges and deposits made in the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations; (d)deposits to secure the performance of bids, trade contracts (other than contracts for the payment of money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business; (e)judgment liens in respect of judgments that do not constitute an Event of Default under clause (k) of Article 8; (f)easements, zoning restrictions, rights of way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Borrower or any Subsidiary; (g)Liens in favor of a financial institution encumbering deposits (including the right of setoff) held by such financial institution in the ordinary course of its business and which are within the general parameters customary in the banking industry; and (h)Liens on Margin Stock to the extent that a prohibition on such Liens would violate Regulation U. "Permitted Investments" means: (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent that such obligations are backed by the full faith and credit of the United States of America), in each case maturing within six months from the date of acquisition thereof; (b) dollar denominated investments in certificates of deposit, banker's acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with any Lender or any other bank whose (or whose parent company's) unsecured non-credit supported short-term commercial paper rating is (i) at least A-1 or the equivalent thereof from Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, or any successor thereto, or (ii) at least P-1 or the equivalent thereof from Moody's Investors Service, Inc. or any successor thereto; (c) investments in commercial paper maturing within six months from the date of acquisition thereof (i) issued by any Lender or any other bank satisfying the criteria described in clause (b) of this definition (or by the parent company thereof), (ii) issued by, or guaranteed by, any industrial or financial company whose unsecured non-credit supported commercial paper rating is (A) at least A-1 or the equivalent thereof from Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, or any successor thereto, or (B) at least P-1 or the equivalent thereof from Moody's Investors Service, Inc. or any successor thereto or (iii) guaranteed by any industrial or financial company with a long term unsecured non-credit supported senior debt rating of at least A or A-2, or the equivalent thereof, from Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, or any successor thereto or Moody's Investors Service, Inc. or any successor thereto; (d) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, any State of the United States of America or any political subdivision of any State or any public instrumentality thereof, in each case maturing within six months from the date of acquisition thereof and, at the time of acquisition thereof, having one of the two highest ratings obtainable from Standard & Poor's Ratings Services, a division of The McGraw Hill Companies, or any successor thereto or Moody's Investors Service, Inc. or any successor thereto; (e) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) of this definition and entered into with any Lender or any other bank satisfying the criteria described in clause (b) of this definition; and (f) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (a) through (e) of this definition. "Permitted Notes" has the meaning set forth in Section 7.1(a)(xvii). "Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. "Plan" means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower, any Subsidiary or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA. "Prime Rate" means the rate of interest per annum publicly announced from time to time by BNY as its prime commercial lending rate at its principal office in New York City; each change in the Prime Rate being effective from and including the date such change is publicly announced as being effective. The Prime Rate is not intended to be lowest rate of interest charged by BNY in connection with extensions of credit to borrowers. "Prior Credit Agreement" means the Credit Agreement, dated as of June 30, 1999, among the Borrower, the lenders party thereto JPMorgan Chase Bank, Bank One, NA, Wachovia Bank, National Association and Fleet National Bank, as co-agents thereunder, and The Bank of New York, as administrative agent thereunder. "Prior Loan Documents" means, collectively, the Prior Credit Agreement, all guarantees, security agreements, security agreements, mortgages and other Loan Documents (as defined therein). "Register" has the meaning assigned to such term in Section 10.4(c). "Regulation D" means Regulation D of the Board. "Regulation T" means Regulation T of the Board. "Regulation U" means Regulation U of the Board. "Regulation X" means Regulation X of the Board. "Related Parties" means, with respect to any specified Person, such Person's Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person's Affiliates. "Required Lenders" means, at any time, Lenders having unused Commitments (other than the Swingline Commitment), LC Exposure, Swingline Exposure and outstanding Loans (other than Swingline Loans) representing greater than 50% of the sum of the unused Commitments (other than the Swingline Commitment), LC Exposure, Swingline Exposure and outstanding Loans (other than Swingline Loans) of all Lenders. "Responsible Officer" means as to any Person, its President, Chief Financial Officer, Treasurer, General Counsel, Secretary, any Vice President, Assistant Secretary, Assistant Treasurer, or any other individual responsible for (i) the management of the Borrower or any of the Subsidiaries or (ii) monitoring or ensuring compliance with the Loan Documents. "Restricted Payment" means, as to any Person, (i) any dividend or other distribution by such Person (whether in cash, securities or other property) with respect to any Equity Interests of such Person, (ii) any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interest, (iii) any payment of principal or interest or any purchase, redemption, retirement, acquisition or defeasance with respect to any Indebtedness of such Person which is subordinated to the payment of the Obligations and (iv) the acquisition for value by such Person of any Equity Interests issued by such Person or any other Person that Controls such Person. "Revolving Commitment" means, with respect to each Lender having a Revolving Commitment, the commitment of such Lender to make Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder in an aggregate outstanding amount not exceeding the amount of such Lender's Revolving Commitment as set forth on Schedule 2.1, in the initial Revolving Increase Supplement executed and delivered by such Lender, the Borrower and the Administrative Agent or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Revolving Commitment, as applicable, as such Revolving Commitment may be adjusted from time to time pursuant to Section 2.7 or pursuant to assignments by or to such Lender pursuant to Section 10.4. The initial aggregate amount of the Revolving Commitments on the Agreement Date is $300,000,000. "Revolving Credit Exposure" means, with respect to any Lender at any time, the sum of the aggregate outstanding principal amount of such Lender's Revolving Loans, LC Exposure and Swingline Exposure at such time. "Revolving Increase Supplement" means an increase supplement, substantially in the form of Exhibit G. "Revolving Loan" means a loan referred to in Section 2.1(a) and made pursuant to Section 2.6. "Rule 12b-1" means Rule 12b-1 promulgated under the 1940 Act. "Securitization" means the transfer or pledge of assets or interests in assets to a trust, partnership, corporation or other entity, which transfer or pledge is funded by such entity in whole or in part by the issuance of instruments or securities that are paid principally from the cash flow derived from such assets or interests in assets. "Senior Leverage Ratio" means, at any date of determination, the ratio of (i) Consolidated Senior Debt on such date to (ii) Consolidated Adjusted EBITDA for the four fiscal quarter period ending on such date or, if such date is not the last day of a fiscal quarter, for the immediately preceding four fiscal quarter period. For purposes of this definition, "Consolidated Senior Debt" shall not include any Indebtedness incurred by the Borrower or any of the Subsidiaries in connection with Compensation Financings to the extent permitted by Section 7.1(a)(xi). "Significant Subsidiary" means any Subsidiary which, as of the last day of the most recently completed fiscal quarter, satisfies any one or more of the following three tests: (i) the Borrower and the other Subsidiaries' investments in and advances to such Subsidiary exceed 10% of Consolidated Total Assets, (ii) the Borrower and the other Subsidiaries' proportionate share of Consolidated Total Assets (after intercompany eliminations) consisting of the property of such Subsidiary exceeds 10% of Consolidated Total Assets or (iii) the Borrower and the other Subsidiaries' equity in the income (not to include losses) from continuing operations before income taxes, extraordinary items and the cumulative effect of a change in accounting principles of such Subsidiary exceeds 10% of the income (to include losses) from continuing operations before income taxes, extraordinary items and the cumulative effect of a change in accounting principles of the Borrower and the Subsidiaries determined on a consolidated basis in accordance with GAAP. "Statutory Reserve Rate" means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as "Eurocurrency liabilities" in Regulation D). Such reserve percentages shall include those imposed pursuant to Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage. "Subordinated Debt" means, collectively, (i) Indebtedness in respect of the Subordinated Notes and (ii) when issued, Indebtedness in respect of the Subordinated Refinancing Notes. "Subordinated Indenture" means the Subordinated Indenture, dated as of March 14, 2001, by and between the Borrower and Chase Manhattan Trust Company, National Association, as Trustee, pursuant to which the Borrower issued $300,000,000 principal amount of Subordinated Notes. "Subordinated Notes" means the 4% Convertible Subordinated Notes, due March 15, 2006, and issued by the Borrower pursuant to the Subordinated Indenture. "Subordinated Refinancing Notes" has the meaning assigned to such term in Section 7.1(a)(xvi). "subsidiary" means, with respect to any Person (the "parent"), as of any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent's consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power is or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held by the parent or one or more subsidiaries of the parent. "Subsidiary" means any subsidiary of the Borrower. "Subsidiary Guarantor" means any Domestic Subsidiary (other than an Exempt Subsidiary) that executes and delivers the Guarantee Agreement, in each case in accordance with Sections 5.1(g) and 6.10. "Supermajority Lenders" means, at any time, Lenders having unused Commitments (other than the Swingline Commitment), LC Exposure, Swingline Exposure and outstanding Loans (other than Swingline Loans) representing greater than or equal to 75% of the sum of the unused Commitments (other than the Swingline Commitment), LC Exposure, Swingline Exposure and outstanding Loans (other than Swingline Loans) of all Lenders. "Swingline Commitment" means, with respect to the Swingline Lender, the commitment of the Swingline Lender to make Swingline Loans hereunder. The amount of the Swingline Lender's Swingline Commitment is $20,000,000. "Swingline Exposure" means, at any time, the aggregate outstanding principal amount of all Swingline Loans at such time. The Swingline Exposure of any Lender at any time shall be its Applicable Percentage of the Swingline Exposure at such time. "Swingline Lender" means BNY in its capacity as lender of Swingline Loans hereunder. "Swingline Loan" means a loan referred to and made pursuant to Section 2.5. "Swingline Rate" means, with respect to each Swingline Loan, the rate per annum agreed to in writing by the Borrower and the Swingline Lender in accordance with Section 2.5(b) as the interest rate that such Swingline Loan shall bear, provided that if the Borrower and the Swingline Lender shall have been unable to agree upon such interest rate for such Swingline Loan, the Swingline Rate for such Swingline Loan shall be a rate per annum equal to the Alternate Base Rate plus the Applicable Margin. "Taxes" means any and all current or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority. "Term Commitment" means, with respect to each Lender having a Term Commitment, the commitment of such Lender to make a Term Loan in an amount not exceeding the amount of such Lender's Term Commitment as set forth on Schedule 2.1 or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Term Commitment, as applicable, as such Term Commitment may be adjusted from time to time pursuant to assignments by or to such Lender pursuant to Section 10.4. The amount of each Lender's Term Commitment on the Agreement Date is set forth on Schedule 2.1. The aggregate amount of the Term Commitments on the Agreement Date is $100,000,000. "Term Loan" means a loan referred to in Section 2.1(b) and made pursuant to Section 2.6. "Total Leverage Ratio" means, at any date of determination, the ratio of (i) Consolidated Total Debt on such date to (ii) Consolidated Adjusted EBITDA for the four fiscal quarter period ending on such date or, if such date is not the last day of a fiscal quarter, for the immediately preceding four fiscal quarter period. For purposes of this definition, "Consolidated Total Debt" shall not include any Indebtedness incurred by the Borrower or any of the Subsidiaries in connection with Compensation Financings to the extent permitted by Section 7.1(a)(xi). "Transactions" means (i) the execution, delivery and performance by each Loan Party of each Loan Document to which it is a party, (ii) the borrowing of the Loans and the issuance of the Letters of Credit and (iii) the use of the proceeds of the Loans and the Letters of Credit. "12b-1 Fees" means all fees and distribution or other expenses incurred under a plan adopted pursuant to Rule 12b-1 under the 1940 Act. "Type", when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to (i) in the case of a Revolving Loan or Borrowing, the Adjusted LIBO Rate or the Alternate Base Rate, (ii) in the case of a Swingline Loan, the Swingline Rate or (iii) in the case of a Competitive Loan or Borrowing, the Adjusted LIBO Rate or a Fixed Rate. "Withdrawal Liability" means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. Classification of Loans and Borrowings For purposes of this Credit Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings may also be classified and referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing"). Terms Generally The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The word "will" shall be construed to have the same meaning and effect as the word "shall". Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (ii) any definition of or reference to any law shall be construed as referring to such law as from time to time amended and any successor thereto and the rules and regulations promulgated from time to time thereunder, (iii) any reference herein to any Person shall be construed to include such Person's successors and assigns, (iv) the words "herein", "hereof" and "hereunder", and words of similar import, shall be construed to refer to this Credit Agreement in its entirety and not to any particular provision hereof, (v) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Credit Agreement, and (vi) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Any reference to an "applicable Lender" means (i) in the case of Revolving Borrowings, Swingline Loans and Letters of Credit, Lenders having a Revolving Commitment, and (ii) in the case of Term Borrowings, Lenders having a Term Commitment or Term Loans. Accounting Terms; GAAP Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time, provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith. Unless the context otherwise requires, any reference to a fiscal period shall refer to the relevant fiscal period of the Borrower. THE CREDITS Commitments Subject to the terms and conditions hereof, each Lender having a Revolving Commitment agrees to make Revolving Loans to the Borrower in dollars from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender's Revolving Credit Exposure exceeding such Lender's Revolving Commitment or (ii) the sum of the total Revolving Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans exceeding the total Revolving Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Subject to the terms and conditions hereof, each Lender having a Term Commitment severally agrees to make a Term Loan to the Borrower in dollars in a single draw on the Closing Date in a principal amount not exceeding such Term Commitment. Term Loans which are prepaid or repaid, in whole or in part, may not be reborrowed. Loans and Borrowings Each (i) Revolving Loan shall be made as part of a Borrowing consisting of Revolving Loans made by the applicable Lenders ratably in accordance with their respective Revolving Commitments, (ii) each Term Loan shall be made as part of a Borrowing consisting of Term Loans made by the applicable Lenders in accordance with their respective Term Commitments, (iii) each Competitive Loan shall be made in accordance with the procedures set forth in Section 2.4 and (iv) each Swingline Loan shall be made in accordance with the procedures set forth in Section 2.5. The failure of any applicable Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder, provided that the Revolving Commitments, Term Commitments and Competitive Bids of the applicable Lenders are several, and no Lender shall be responsible for any other Lender's failure to make Loans as required. Subject to Section 3.4, each (i) Revolving Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans, as applicable, (ii) each Term Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans, as applicable, (iii) each Competitive Borrowing shall be comprised entirely of Eurodollar Loans or Fixed Rate Loans, as applicable, and (iv) each Swingline Borrowing shall be a Swingline Loan, in each case as the Borrower may request in accordance with the provisions of this Credit Agreement. Each applicable Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan, provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Credit Agreement. At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $3,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Revolving Commitments or in an aggregate amount that is required to finance the repayment of a Swingline Loan as contemplated by Section 2.5(c) or the reimbursement of an LC Disbursement as contemplated by Section 2.10(e). Each Competitive Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. Each Swingline Borrowing shall be in an aggregate amount that is an integral multiple of $100,000 and not less than $500,000. Borrowings of more than one Type may be outstanding at the same time, provided that there shall not at any time be more than a total of ten Eurodollar Borrowings outstanding. Notwithstanding any other provision of this Credit Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date. Requests for Revolving and Term Borrowings To request a Revolving Borrowing or a Term Borrowing, the Borrower shall deliver a Credit Request to the Administrative Agent by hand or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the Administrative Agent) or notify the Administrative Agent by telephone, in each case to be promptly confirmed by the delivery to the Administrative Agent of a signed Credit Request (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing. Each such Credit Request (including each such telephonic request) shall be irrevocable and shall specify the following information in compliance with Section 2.2: the aggregate amount of the requested Borrowing; the date of such Borrowing, which shall be a Business Day; whether such Borrowing is to be a Revolving Borrowing or a Term Borrowing; whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term "Interest Period"; and the location and number of the Borrower's account to which funds are to be disbursed, which shall comply with the requirements of Section 2.6. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of a Credit Request in accordance with this Section, the Administrative Agent shall advise each applicable Lender of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing. Competitive Loans Subject to the terms and conditions set forth herein, from time to time during the Availability Period, the Borrower may request Competitive Bids for Competitive Loans denominated in dollars and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Loans; provided that the aggregate principal amount of outstanding Competitive Loans at any time shall not exceed an amount equal to 50% of the total Revolving Commitments as of the date of such Borrowing. To request Competitive Bids, the Borrower shall notify the Administrative Agent of such request by telephone, in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, five Business Days before the date of the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing; provided that the Borrower may submit in the aggregate up to (but not more than) four Competitive Bid Requests on the same day, but a Competitive Bid Request shall not be made within five Business Days after the date of any previous Competitive Bid Request, unless any and all such previous Competitive Bid Requests shall have been withdrawn or all Competitive Bids received in response thereto rejected. Each such telephonic delivery or facsimile to the Administrative Agent of a written Competitive Bid Request shall be confirmed promptly by hand delivery or facsimile to the Administrative Agent of a written Competitive Bid Request in a form approved by the Administrative Agent and signed by the Borrower. Each such telephonic and written Competitive Bid Request shall specify the following information in compliance with Section 2.2: the aggregate amount of the requested Borrowing; the date of such Borrowing, which shall be a Business Day; whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate Borrowing; the Interest Period to be applicable to such Borrowing, which shall be a period contemplated by the definition of the term "Interest Period"; and the location and number of the Borrower's account to which funds are to be disbursed, which shall comply with the requirements of Section 2.2. Promptly following receipt of a Competitive Bid Request in accordance with this Section, the Administrative Agent shall notify the Lenders of the details thereof by facsimile, inviting the Lenders to submit Competitive Bids. Each Lender may (but shall not have any obligation to) make one or more Competitive Bids to the Borrower in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent and must be received by the Administrative Agent by facsimile, in the case of a Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York City time, three Business Days before the proposed date of such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the proposed date of such Competitive Borrowing. Competitive Bids that do not conform substantially to the form approved by the Administrative Agent may be rejected by the Administrative Agent, and the Administrative Agent shall notify the applicable Lender as promptly as practicable. Each Competitive Bid shall specify (i) the principal amount (which shall be a minimum of $5,000,000 and an integral multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Borrowing requested by the Borrower) of the Competitive Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan or Loans (expressed as a percentage rate per annum in the form of a decimal to no more than four decimal places) and (iii) the Interest Period applicable to each such Loan and the last day thereof. The Administrative Agent shall promptly notify the Borrower by facsimile of the Competitive Bid Rate and the principal amount specified in each Competitive Bid and the identity of the Lender that shall have made such Competitive Bid. Subject only to the provisions of this paragraph, the Borrower may in its sole and absolute discretion accept or reject any Competitive Bid. The Borrower shall notify the Administrative Agent by telephone, confirmed by facsimile in a form approved by the Administrative Agent, whether and to what extent it has decided to accept or reject each Competitive Bid, in the case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York City time, three Business Days before the date of the proposed Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the proposed date of the Competitive Borrowing; provided that (i) the failure of the Borrower to give such notice shall be deemed to be a rejection of each Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a particular Competitive Bid Rate if the Borrower rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted by the Borrower shall not exceed the aggregate amount of the requested Competitive Borrowing specified in the related Competitive Bid Request, (iv) to the extent necessary to comply with clause (iii) above, the Borrower may accept Competitive Bids at the same Competitive Bid Rate in part, which acceptance, in the case of multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata in accordance with the amount of each Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000; provided further that if a Competitive Loan must be in an amount less than $5,000,000 because of the provisions of clause (iv) above, such Competitive Loan may be for a minimum of $1,000,000 or any integral multiple thereof, and in calculating the pro rata allocation of acceptances of portions of multiple Competitive Bids at a particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be rounded to integral multiples of $1,000,000 in a manner determined by the Borrower. A notice given by the Borrower pursuant to this paragraph shall be irrevocable. The Administrative Agent shall promptly notify each bidding Lender by facsimile whether or not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each successful bidder will thereupon become bound, subject to the terms and conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been accepted. If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly to the Borrower at least one quarter of an hour earlier than the time by which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this Section. Swingline Loans Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower in dollars from time to time on any Business Day during the period from the Closing Date to the sixth Business Day preceding the last day of the Availability Period in an aggregate principal amount at any time outstanding that will not result in (i) the Swingline Exposure exceeding the Swingline Commitment or (ii) the sum of the total Revolving Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans exceeding the total Revolving Commitments, provided that the Swingline Lender shall not be required to make a Swingline Loan to refinance an outstanding Swingline Loan. Notwithstanding the foregoing, the Swingline Lender shall not be required to make a Swingline Loan if (A) any applicable Lender shall be in default of its obligations under this Credit Agreement or (B) any Credit Party shall have notified the Swingline Lender and the Borrower in writing at least one Business Day prior to the date of the proposed Borrowing of such Swingline Loan that the conditions set forth in Section 5.3 have not been satisfied and such conditions remain unsatisfied as of the requested time of the making of such Swingline Loan, provided, further, that the Swingline Lender shall not make such Swingline Loan if Required Lenders shall have so notified the Administrative Agent, the Swingline Lender and the Borrower in writing and the conditions with respect to which such notice was provided remain unsatisfied as of the requested time of the making of such Swingline Loan. Each Swingline Loan shall be due and payable on the maturity thereof, provided that in no event shall such maturity be later than the sixth Business Day preceding the Maturity Date. To request a Swingline Loan, the Borrower shall notify the Administrative Agent and the Swingline Lender by telephone (confirmed by facsimile) no later than 2:00 p.m., New York City time, on the day of the relevant Swingline Loan. Each such notice shall be irrevocable and shall specify (i) the aggregate principal amount to be borrowed, (ii) the requested date (which shall be a Business Day), and (iii) the requested Swingline Rate and maturity date of the requested Swingline Loan which shall be not later than seven Business Days after the making of such Swingline Loan. Subject to its agreement with the Borrower on the applicable Swingline Rate, the Swingline Lender will make the requested amount available promptly on that same day by means of a credit to an account designated in writing by the Borrower not less than one Business Day prior to such Loan or, in the case of a Swingline Loan made to finance the reimbursement of an LC Disbursement as provided in Section 2.10(e) by remittance to the Issuing Bank. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day require the applicable Lenders to acquire participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which the applicable Lenders will participate. Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each applicable Lender, specifying in such notice such applicable Lender's Applicable Percentage of such Swingline Loan or Swingline Loans. Each applicable Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender's Applicable Percentage of such Swingline Loan or Swingline Loans. Each applicable Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever. Each applicable Lender shall comply with its obligation under this paragraph by wire transfer of immediately available funds, in the same manner as provided in Section 2.6 with respect to Revolving Loans made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Swingline Lender the amounts so received by it from the applicable Lenders. The Administrative Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to this paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be promptly remitted to the Administrative Agent; any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the applicable Lenders that shall have made their payments pursuant to this paragraph and to the Swingline Lender, as their interests may appear. The purchase of participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof. The Swingline Lender may by written notice given to the Administrative Agent not later than 10:00 a.m., New York City time, on any Business Day notify the Administrative Agent that the Swingline Lender is requesting that the applicable Lenders make an ABR Revolving Borrowing in an amount equal to the outstanding principal balance and accrued interest on the Swingline Loans, in which case (i) the Administrative Agent shall notify each applicable Lender of the details thereof and of the amount of such Lender's Loan to be made as part of such ABR Revolving Borrowing, and (ii) each Lender shall, whether or not any Default shall have occurred and be continuing, any representation or warranty shall be accurate, any condition to the making of any loan hereunder shall have been fulfilled, or any other matter whatsoever, make the Loan to be made by it under this paragraph by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, (A) on such date, in the event that such Lender shall have received notice of such ABR Revolving Borrowing prior to 12:00 noon, New York City time, or (B) if such notice has not been received by such Lender prior to such time on such date, then not later than 1:00 p.m., New York City time, on (X) the Business Day that such Lender receives such notice, if such notice is received prior to 12:00 noon, New York City time, on the day of receipt or (Y) the Business Day immediately following the day that such Lender receives such notice, if such notice is not received prior to such time on the day of receipt. Such Loans shall, for all purposes hereof, be deemed to be an ABR Revolving Borrowing referred to in Section 2.1(a) and made pursuant to Section 2.3, and the Lenders obligations to make such Loans shall be absolute and unconditional. The Administrative Agent will make such Loans available to the Swingline Lender by promptly crediting or otherwise transferring the amounts so received, in like funds, to the Swingline Lender for the purpose of repaying in full the Swingline Loans and all accrued interest thereon. Funding of Borrowings Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders, provided that Swingline Loans shall be made as provided in Section 2.5(a). Subject to Section 5.3, the Administrative Agent will make such Loans available to the Borrower by promptly crediting or otherwise transferring the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent and designated by the Borrower in the applicable Credit Request or Competitive Bid Request, provided that ABR Revolving Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.10(e) shall be remitted by the Administrative Agent to the Issuing Bank, provided, further that ABR Revolving Loans made to finance the repayment of a Swingline Loan as provided in Section 2.5(d) shall be remitted by the Administrative Agent to the Swingline Lender. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.6(a), Section 2.5(c) or Section 2.10(e) and may, in reliance upon such assumption, make available to the Borrower, the Issuing Bank or the Swingline Lender, as applicable, a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower, the Issuing Bank or the Swingline Lender, as applicable, to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate that would be otherwise applicable to such Borrowing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in such Borrowing. Termination, Reduction and Increase of Revolving Commitments Unless previously terminated, the Term Commitments shall terminate upon the making of the Term Loans on the Closing Date and the Revolving Commitments (together with the Letter of Credit Commitment and the Swingline Commitment) shall terminate on the last day of the Availability Period. The Borrower may at any time terminate, or from time to time reduce, the Revolving Commitments, provided that (i) the Borrower shall not terminate or reduce the Revolving Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in accordance with Section 2.9, the sum of the Revolving Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans would exceed the total Revolving Commitments (ii) each such reduction of the Revolving Commitments shall be in an amount that is an integral multiple of $1,000,000 and not less than $3,000,000, and (iii) any reduction of the Revolving Commitments to an amount below the LC Commitment or the Swingline Commitment shall be automatically reduce the LC Commitment or the Swingline Commitment, as applicable on a dollar for dollar basis. The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable, provided that a notice of termination of the Revolving Commitments delivered by the Borrower may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Each reduction, and any termination, of the Revolving Commitments shall be permanent and each reduction of the Revolving Commitments shall be made ratably among the applicable Lenders in accordance with their respective Revolving Commitments. The Borrower may at any time and from time to time at its sole cost, expense and effort, request any one or more of the Lenders having a Revolving Commitment to increase its Revolving Commitment (the decision to increase the Revolving Commitment of a Lender to be within the sole and absolute discretion of such Lender), or any other Person reasonably satisfactory to the Administrative Agent, the Swingline Lender and the Issuing Bank to provide a new Revolving Commitment, by submitting to the Administrative Agent, the Swingline Lender and the Issuing Bank a Revolving Increase Supplement duly executed by the Borrower and each such Lender or other Person, as the case may be. The Administrative Agent shall, subject to the negotiation of mutually acceptable fees, use commercially reasonable efforts to secure such increased or new Revolving Commitments on behalf of the Borrower. If such Revolving Increase Supplement is in all respects reasonably satisfactory to the Administrative Agent, the Swingline Lender and the Issuing Bank, it shall execute such Revolving Increase Supplement and the Administrative Agent shall deliver a copy thereof to the Borrower and each such Lender or other Person, as the case may be. Upon execution and delivery of such Revolving Increase Supplement by the Administrative Agent, the Swingline Lender and the Issuing Bank, (x) in the case of each such Lender, its Revolving Commitment shall be increased to the amount set forth in such Revolving Increase Supplement, (y) in the case of each such other Person, such other Person shall become a party hereto and have the rights and obligations of a Lender under the Loan Documents and its Revolving Commitment shall be as set forth in such Revolving Increase Supplement; provided that: immediately after giving effect thereto, the sum of all increases in the aggregate Revolving Commitments made pursuant to this Section 2.7(d) shall not exceed $100,000,000 and the total Revolving Commitments shall not exceed $400,000,000; each such increase of the aggregate Revolving Commitments shall be in an amount not less than $10,000,000 or such amount plus an integral multiple of $5,000,000; if Revolving Loans would be outstanding immediately after giving effect to any such increase, then simultaneously with such increase (1) each such increasing Lender, each such other Person and each other Lender having a Revolving Commitment shall be deemed to have entered into a master assignment and acceptance agreement, in form and substance substantially similar to Exhibit A, pursuant to which each such other Lender shall have assigned to each such increasing Lender and each such other Person a portion of its Revolving Loans necessary to reflect proportionately the Revolving Commitments as adjusted in accordance with this subsection (f), and (2) in connection with such assignment, each such increasing Lender and each such other Person shall pay to the Administrative Agent, for the account of each such other Lender, such amount as shall be necessary to reflect the assignment to it of Revolving Loans, and in connection with such master assignment each such other Lender may treat the assignment of Eurodollar Borrowings as a prepayment of such Eurodollar Borrowings for purposes of Section 3.6; and each such other Person shall have delivered to the Administrative Agent and the Borrower all forms, if any, that are required to be delivered by such other Person pursuant to Section 3.7. Repayment of Loans; Evidence of Debt The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each applicable Lender the then unpaid principal amount of each Revolving Loan and Term Loan on the Maturity Date, (ii) to the Administrative Agent for the account of each Lender which has made a Competitive Loan, the then unpaid principal of such Lender's Competitive Loan on the last day of the Interest Period applicable thereto, and (iii) to the Swingline Lender the then unpaid principal amount of each Swingline Loan on the earlier of (x) the maturity date selected by the Borrower for such Swingline Loan and (y) the Maturity Date. On each date set forth below, the aggregate unpaid principal balance of the Term Loans shall be due and payable in an amount equal to the amount set forth in the following table adjacent to such date under the heading "Amount":
DATE AMOUNT ---- ------ June 30, 2005 $ 6,250,000 September 30, 2005 $ 6,250,000 December 31, 2005 $ 6,250,000 March 31, 2006 $ 6,250,000 June 30, 2006 $ 6,250,000 September 30, 2006 $ 6,250,000 December 31, 2006 $ 6,250,000 March 31, 2007 $ 6,250,000 June 30, 2007 $12,500,000 September 30, 2007 $12,500,000 December 31, 2007 $12,500,000 Maturity Date remaining unpaid principal balance of the Term Loans
Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the debt of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period, if any, applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender's share thereof. The entries made in the accounts maintained pursuant to paragraphs (c) or (d) of this Section shall, to the extent not inconsistent with any entries made in the Notes, be prima facie evidence of the existence and amounts of the obligations recorded therein, provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Credit Agreement. The Loans made by each Lender (other than the Swingline Lender) shall be evidenced by a Note payable to the order of such Lender, substantially in the form of Exhibit D and the Swingline Loans made by the Swingline Lender shall be evidenced by a Note payable to the order of the Swingline Lender, substantially in the form of Exhibit D-1. In addition, if requested by a Lender, its Note (or, in the case of the Swingline Lender, Notes) may be made payable to such Lender and its registered assigns in which case all Loans evidenced by such Note and interest thereon shall at all times (including after assignment pursuant to Section 10.4) be represented by one or more Notes in like form payable to the order of the payee named therein and its registered assigns. Prepayment of Loans Voluntary Prepayments. The Borrower shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, subject to the requirements of this Section, provided that Competitive Loans and Swingline Loans may not be voluntarily prepaid. Prepayments Resulting from the Reduction of the Total Revolving Commitments. In the event of any partial reduction or termination of the Revolving Commitments, then (i) at or prior to the date of such reduction or termination, the Administrative Agent shall notify the Borrower and the applicable Lenders of the sum of the Revolving Credit Exposures plus the aggregate principal balance of outstanding Competitive Loans after giving effect thereto and (ii) if such sum would exceed the total Revolving Commitments after giving effect to such reduction or termination, then the Borrower shall, on the date of such reduction or termination, prepay Revolving Borrowings in an amount sufficient to eliminate such excess. Notice of Prepayment; Application of Prepayments. The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile) of any prepayment hereunder (i) in the case of a prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or (ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid, provided that if a notice of prepayment is given in connection with a conditional notice of termination of the Revolving Commitments as contemplated by Section 2.7, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.7. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Revolving Borrowing under Section 2.9(a) shall, when added to the amount of each concurrent reduction of the Revolving Commitments and prepayment of Revolving Borrowings under such Sections, be in an integral multiple of $1,000,000 and not less than $3,000,000. Each partial prepayment of any Term Borrowing under Section 2.9(a) shall be in an integral multiple of $1,000,000 and not less than $3,000,000. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Each prepayment of Term Loans shall be applied to the remaining installments of principal required under Section 2.8(b) in the inverse order of maturity. Prepayments shall be accompanied by accrued interest to the extent required by Section 3.1. All prepayments shall be subject to Section 3.6, if applicable. Letters of Credit General. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of New Letters of Credit denominated in dollars for its own account, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank, at any time and from time to time during the period from the Closing Date to the tenth Business Day preceding the last day of the Availability Period. In the event of any inconsistency between the terms and conditions of this Credit Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and conditions of this Credit Agreement shall control. Notice of Issuance; Amendment; Renewal; Extension; Certain Conditions. To request the issuance of a New Letter of Credit (or the amendment, renewal or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the Administrative Agent (not later than three Business Days before the requested date of issuance, amendment, renewal or extension) a Credit Request requesting the issuance of a New Letter of Credit, or identifying the New Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such New Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such New Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such New Letter of Credit. If requested by the Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank's standard form in connection with any request for a New Letter of Credit. A New Letter of Credit shall be issued, amended, renewed or extended only if (and, upon issuance, amendment, renewal or extension of each New Letter of Credit, the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal or extension, (i) the LC Exposure shall not exceed the Letter of Credit Commitment and (ii) the total Revolving Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans shall not exceed the total Revolving Commitments. Expiration Date. Each New Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is one year after the date of the issuance of such New Letter of Credit (or, in the case of any renewal or extension thereof, one year after such renewal or extension) and (ii) the date that is ten Business Days prior to the Maturity Date, provided that any New Letter of Credit may provide for the renewal thereof for additional one year periods (which shall in no event extend beyond the date that is ten Business Days prior to the Maturity Date). Participations. By the issuance of a New Letter of Credit (or an amendment to a New Letter of Credit increasing the amount thereof) or, in the case of an Existing Letter of Credit, the execution and delivery of this Credit Agreement, and without any further action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Lender having a Revolving Commitment, and each such Lender hereby acquires from the Issuing Bank, a participation in each Letter of Credit equal to such Lender's Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each such Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the Issuing Bank, such Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason. Each such Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the Revolving Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever; provided, however, that no Lender shall be obligated to make any payment to the Administrative Agent for any wrongful LC Disbursement made by the Issuing Bank as a result of acts or omissions constituting willful misconduct or gross negligence on the part of the Issuing Bank. Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 4:00 p.m., New York City time, on the date that such LC Disbursement is made, if the Borrower shall have received written notice (by hand delivery or telecopy) of such LC Disbursement prior to 12:00 noon, New York City time, on such date, or if such written notice has not been received by the Borrower prior to such time on such date, then not later than 4:00 p.m., New York City time, on (i) the Business Day that the Borrower receives such written notice, if such written notice is received prior to 12:00 noon, New York City time, on the day of receipt or (ii) the Business Day immediately following the day that the Borrower receives such written notice, if such written notice is not received prior to such time on the day of receipt, provided that (A) in addition to such written notice, (x) the officers of the Administrative Agent primarily responsible for the administration of this Agreement shall, promptly after they receive notice that a draft in respect of such LC Disbursement has been presented to the Issuing Bank, use reasonable efforts to notify the Borrower of such draft by telephone and (y) the Administrative Agent shall, promptly after it receives notice that such LC Disbursement has been made, use reasonable efforts to notify the Borrower of such LC Disbursement by telephone prior to the delivery of such written notice, provided, further, that the failure of the Borrower to receive any such telephonic notice from the Administrative Agent or any officer thereof shall not in any manner affect the Borrower's obligation to reimburse such LC Disbursement in accordance with the terms of this Section, and (B) if such LC Disbursement is not less than $500,000, the Borrower may, subject to the conditions of borrowing set forth herein, request in accordance with Section 2.3 or 2.5 that such payment be financed with an ABR Revolving Borrowing or a Swingline Loan in an equivalent amount and, to the extent so financed, the Borrower's obligation to make such payment shall be discharged and replaced by the resulting ABR Borrowing or Swingline Loan, as applicable. If the Borrower fails to make such payment under this paragraph when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender's Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.6 with respect to Loans made by such Lender (and Section 2.6 shall apply, mutatis mutandis, to the payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or Swingline Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. Obligations Absolute. The Borrower's obligations to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Credit Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent, insufficient or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower's obligations hereunder. Neither any Credit Party nor any of their respective Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the Issuing Bank; provided that the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by the Issuing Bank's failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit. Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit. The Issuing Bank shall promptly notify (which may include telephonic notice, promptly confirmed by facsimile) the Administrative Agent and the Borrower of such demand for payment and whether the Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank and the applicable Lenders with respect to any such LC Disbursement. Interim Interest. If the Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 3.1(d) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be for the account of such Lender to the extent of such payment. Cash Collateral. If any Event of Default shall occur and be continuing, on the Business Day that the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the applicable Lenders, an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that the obligation to deposit such cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of Article 8. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the obligations of the Borrower under this Credit Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Such deposit shall not bear interest, nor shall the Administrative Agent be under any obligation whatsoever to invest the same, provided, however, that, at the request of the Borrower, such deposit shall be invested by the Administrative Agent in direct short term obligations of, or short term obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America, in each case maturing no later than the expiry date of the Letter of Credit giving rise to the relevant LC Exposure. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this Credit Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default have been cured or waived. Payments Generally; Pro Rata Treatment; Sharing of Setoffs Each Loan Party shall make each payment required to be made by it hereunder or under any other Loan Document (whether of principal of Loans, LC Disbursements, interest or fees, or of amounts payable under Sections 3.5, 3.6, 3.7 or 10.3, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, without setoff or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its office at One Wall Street, New York, New York, or such other office as to which the Administrative Agent may notify the other parties hereto, except payments to be made to the Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to Sections 3.5, 3.6, 3.7 and 10.3 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars. Each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of fees, each reduction of the Revolving Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the applicable Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans). Each Lender agrees that in computing such Lender's portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender's percentage of such Borrowing to the next higher or lower whole dollar amount. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal of Loans, unreimbursed LC Disbursements, interest, fees and commissions then due hereunder, such funds shall be applied (i) first, towards payment of interest, fees and commissions then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest, fees and commissions then due to such parties and (ii) second, towards payment of principal of Loans and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal of Loans and unreimbursed LC Disbursements then due to such parties. If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of, or interest on, any of its Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other applicable Lender, then the applicable Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements or Swingline Loans of other applicable Lenders to the extent necessary so that the benefit of all such payments shall be shared by the applicable Lenders ratably in accordance with the aggregate amount of principal of, and accrued interest on, their respective Loans and participations in LC Disbursements or Swingline Loans, provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Credit Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements or Swingline Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation. Unless the Administrative Agent shall have received notice from a Loan Party prior to the date on which any payment is due to the Administrative Agent for the account of the applicable Credit Parties hereunder that such Loan Party will not make such payment, the Administrative Agent may assume that such Loan Party has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to such Credit Parties the amount due. In such event, if such Loan Party has not in fact made such payment, then each such Credit Party severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Credit Party with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. If any Credit Party shall fail to make any payment required to be made by it pursuant to Section 2.5(d), 2.6(b) or 2.10(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Credit Party to satisfy such Credit Party's obligations under such Sections until all such unsatisfied obligations are fully paid. INTEREST, FEES, YIELD PROTECTION, ETC. Interest The Loans comprising each ABR Borrowing (other than Swingline Loans) shall bear interest at the Alternate Base Rate plus the Applicable Margin. Each Swingline Loan shall bear interest at the Swingline Rate unless, pursuant to the provisions of this Credit Agreement, the Swingline Rate is determined by reference to the Alternate Base Rate, in which case such Loan shall bear interest at the Alternate Base Rate plus the Applicable Margin. The Loans comprising each Eurodollar Borrowing shall bear interest (i) in the case of a Eurodollar Revolving Loan, at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the Applicable Margin, or (ii) in the case of a Eurodollar Competitive Loan, at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus, as applicable) the Margin applicable to such Loan. Each Fixed Rate Loan shall bear interest at the Fixed Rate applicable to such Loan. Notwithstanding the foregoing, if any principal of or interest on any Loan, any reimbursement obligation in respect of any LC Disbursement or any fee or other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraph of this Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Revolving Borrowings and Term Borrowings as provided in the preceding paragraph of this Section. In addition, notwithstanding the foregoing, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as such Event of Default is continuing, all outstanding principal of each Loan and all unreimbursed reimbursement obligations in respect of all LC Disbursements shall, without duplication of amounts payable under the preceding sentence, bear interest, after as well as before judgment, at a rate per annum equal to 2% plus the rate otherwise applicable to such Loan as provided in the preceding paragraph of this Section or to such unreimbursed reimbursement obligations in accordance with Section 2.10(h). Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan, provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than the prepayment of an ABR Revolving Loan prior to the end of the Availability Period), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment, (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion, and (iv) all accrued interest shall be payable upon termination of the Revolving Commitments and on the Maturity Date. All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent clearly demonstrable error. Interest Elections Each Borrowing initially shall be of the Type specified in the applicable Credit Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Credit Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the applicable Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing. This Section shall not apply to Competitive Borrowings or Swingline Borrowings, which may not be converted or continued. To make an election pursuant to this Section, the Borrower shall deliver to the Administrative Agent a signed Interest Election Request in a form approved by the Administrative Agent (or notify the Administrative Agent by telephone, to be promptly confirmed by delivery to the Administrative Agent of a signed Interest Election Request) by the time that a Credit Request would be required under Section 2.3 if the Borrower were requesting a Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic and written Interest Election Request shall be irrevocable and shall specify the following information: the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) of this paragraph shall be specified for each resulting Borrowing); the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day; whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term "Interest Period". If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof and of such Lender's portion of each resulting Borrowing. If the Borrower fails to deliver a timely Interest Election Request prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing, (i) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto. Fees The Borrower agrees to pay to the Administrative Agent for the account of each Lender having a Revolving Commitment, a facility fee, which shall accrue at a rate per annum equal to the Facility Fee Percentage on the daily amount of the Revolving Commitment of such Lender (regardless of usage) during the period from and including the date on which this Credit Agreement becomes effective pursuant to Section 10.6 to but excluding the date on which such Revolving Commitment terminates; provided that, if such Lender continues to have any Revolving Credit Exposure after its Revolving Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such Lender's Revolving Credit Exposure from and including the date on which such Lender's Revolving Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall be payable in arrears on the last day of March, June, September and December of each year, each date on which the Revolving Commitments are permanently reduced and on the date on which the Revolving Commitments terminate, commencing on the first such date to occur after the Agreement Date, provided that all unpaid facility fees shall be payable on the date on which the Revolving Commitments terminate and provided further that facility fees which accrue after the Revolving Commitments terminate shall be payable on demand. All facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The Borrower agrees to pay (i) to the Administrative Agent for the account of each Lender having a Revolving Commitment a participation fee with respect to its participations in Letters of Credit, which shall accrue at a rate per annum equal to the Applicable Margin on the average daily amount of such Lender's LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Lender's Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure and (ii) to the Issuing Bank for its own account a fronting fee, which shall accrue at the rate or rates per annum separately agreed upon between the Borrower and the Issuing Bank on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Commitments and the date on which there ceases to be any LC Exposure, as well as the Issuing Bank's standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder, provided that for the purposes of this clause (ii) only, Existing Letters of Credit shall be deemed to have been issued pursuant to this Credit Agreement. Accrued participation fees and fronting fees shall be payable in arrears on the last day of March, June, September and December of each year, commencing on the first such date to occur after the date hereof; provided that all such fees shall be payable on the date on which the Revolving Commitments terminate and any such fees accruing after the date on which the Revolving Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph shall be payable within ten days after demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The Borrower agrees to pay to each Credit Party, for its own account, fees and other amounts payable in the amounts and at the times separately agreed upon between the Borrower and such Credit Party. All fees and other amounts payable hereunder shall be paid on the dates due, in immediately available funds. Fees and other amounts paid shall not be refundable under any circumstances. Alternate Rate of Interest If prior to the commencement of any Interest Period for a Eurodollar Borrowing: the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or (b) the Administrative Agent is advised by any Lender that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lender of making or maintaining its Loan included in such Borrowing for such Interest Period; then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar Revolving Borrowing shall be ineffective and any Eurodollar Revolving Borrowing so requested to be continued shall be converted to an ABR Borrowing on the last day of the current Interest Period with respect thereto, (ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any request by the Borrower for a Eurodollar Competitive Borrowing shall be ineffective; provided that if the circumstances giving rise to such notice do not affect all the Lenders, then requests for Eurodollar Competitive Borrowings may be made to Lenders that are not affected thereby. Increased Costs; Illegality If any Change in Law shall: impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Credit Party (except any such reserve requirement reflected in the Adjusted LIBO Rate); or impose on any Credit Party or the London interbank market any other condition affecting this Credit Agreement, any Eurodollar Loans made by such Credit Party or any participation therein or any Letter of Credit or participation therein, and the result of any of the foregoing shall be to increase the cost to such Credit Party of making or maintaining any Eurodollar Loan or Fixed Rate Loan or to increase the cost to such Credit Party of issuing, participating in or maintaining any Letter of Credit hereunder or to increase the cost to such Credit Party or to reduce the amount of any sum received or receivable by such Credit Party hereunder (whether of principal, interest or otherwise), then the Borrower will pay to such Credit Party such additional amount or amounts as will compensate such Credit Party for such additional costs incurred or reduction suffered. Failure to demand compensation pursuant to this Section shall not constitute a waiver of such Credit Party's right to demand such compensation. If any Credit Party determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Credit Party's capital or on the capital of such Credit Party's holding company, if any, as a consequence of this Credit Agreement or the Loans made, the Letters of Credit issued or the participations therein held, by such Credit Party to a level below that which such Credit Party or such Credit Party's holding company could have achieved but for such Change in Law (taking into consideration such Credit Party's policies and the policies of such Credit Party's holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Credit Party such additional amount or amounts as will compensate such Credit Party or such Credit Party's holding company for any such reduction suffered. A certificate of a Credit Party setting forth the amount or amounts necessary to compensate such Credit Party or its holding company, as applicable, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Credit Party the amount shown as due on any such certificate within 10 days after receipt thereof. Failure or delay on the part of any Credit Party to demand compensation pursuant to this Section shall not constitute a waiver of such Credit Party's right to demand such compensation; provided that the Borrower shall not be required to compensate a Credit Party pursuant to this Section for any increased costs or reductions incurred more than 90 days prior to the date that such Credit Party notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Credit Party's intention to claim compensation therefor; and provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 90 day period referred to above shall be extended to include the period of retroactive effect thereof. Notwithstanding the foregoing provisions of this Section, a Lender shall not be entitled to compensation pursuant to this Section in respect of any Competitive Loan if the Change in Law that would otherwise entitle it to such compensation shall have been publicly announced prior to the submission of the Competitive Bid pursuant to which such Loan was made. Notwithstanding any other provision of this Credit Agreement, if, after the Agreement Date, any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan, then, by written notice to the Borrower and to the Administrative Agent: such Lender may declare that Eurodollar Loans will not thereafter (for the duration of such unlawfulness) be made by such Lender hereunder (or be continued for additional Interest Periods) and ABR Loans will not thereafter (for such duration) be converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing or to convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing, as applicable, for an additional Interest Period shall, as to such Lender only, be deemed a request for an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period or to convert a Eurodollar Loan into an ABR Loan, as applicable), unless such declaration shall be subsequently withdrawn; and such Lender may require that all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically converted to ABR Loans, as of the effective date of such notice as provided in the last sentence of this paragraph. In the event any Lender shall exercise its rights under clause (i) or (ii) of this paragraph, all payments and prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion of, such Eurodollar Loans, as applicable. For purposes of this paragraph, a notice to the Borrower by any Lender shall be effective as to each Eurodollar Loan made by such Lender, if lawful, on the last day of the Interest Period currently applicable to such Eurodollar Loan; in all other cases such notice shall be effective on the date of receipt by the Borrower. Break Funding Payments In the event of (a) the payment or prepayment (voluntary or otherwise) of any principal of any Eurodollar Loan or Fixed Rate Loan other than on the last day of an Interest Period applicable thereto or any Swingline Loan other than on the maturity thereof (other than a Swingline Loan, the Swingline Rate with respect to which is based on the Alternate Base Rate) (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan or Swingline Loan (other than a Swingline Loan, the Swingline Rate with respect to which is based on the Alternate Base Rate) on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.9(c) and is revoked in accordance therewith), (d) the failure to borrow any Competitive Loan after accepting the Competitive Bid to make such Loan or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan other than on the last day of the Interest Period or maturity date applicable thereto as a result of a request by the Borrower pursuant to Section 3.8(b), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event, provided, however, that, notwithstanding anything to the contrary herein, no such compensation shall be payable for any loss, cost or expense attributable to any payment made by the Borrower to the Administrative Agent under Section 2.6(b). In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate that such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof. Taxes Any and all payments by or on account of any obligation of any Loan Party hereunder and under any other Loan Document shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes, provided that, if such Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that, after making all required deductions (including deductions applicable to additional sums payable under this Section), the applicable Credit Party receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Loan Party shall make such deductions and (iii) such Loan Party shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law. In addition, the Loan Parties shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law. Each Loan Party shall indemnify each Credit Party, within ten days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by such Credit Party on or with respect to any payment by or on account of any obligation of such Loan Party under the Loan Documents (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Borrower by a Credit Party, or by the Administrative Agent on its own behalf or on behalf of a Credit Party, shall be conclusive absent manifest error. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which the relevant Loan Party is located, or any treaty to which such jurisdiction is a party, with respect to payments under the Loan Documents shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable law, such properly completed and executed documentation prescribed by applicable law or reasonably requested by the Borrower as will permit such payments to be made without withholding or at a reduced rate. Mitigation Obligations; Replacement of Lenders If any Credit Party requests compensation under Section 3.5, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.7, then such Credit Party shall use reasonable efforts to designate a different lending office for funding or booking its Loans or Letters of Credit (or any participation therein) hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Credit Party, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.5 or 3.7, as applicable, in the future and (ii) would not subject such Credit Party to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Credit Party. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Credit Party in connection with any such designation or assignment. If any Lender requests compensation under Section 3.5, or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.7, in an aggregate amount in excess of $10,000, or if any Lender on three or more separate occasions fails to fulfill its obligations to fund any Revolving Loan or to participate in any Swingline Loan or any LC Disbursement, in each case on the Business Day required therefor, then the Borrower may, at its sole expense (including the fees referred to in Section 10.4(b)) and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 10.4), all its interests, rights and obligations under the Loan Documents (other than any outstanding Competitive Loans held by it), to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (i) the Borrower shall have received the prior written consent of the Administrative Agent (and, if a Commitment is being assigned, the Issuing Bank and Swingline Lender), which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans (other than Competitive Loans) and participations in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for compensation under Section 3.5 or payments required to be made pursuant to Section 3.7, such assignment will result in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Credit Parties that: Organization; Powers Each of the Borrower and the Subsidiaries is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required. Authorization; Enforceability The Transactions are within the corporate, partnership or other analogous powers of each of the Borrower and the Subsidiary Guarantors to the extent it is a party thereto and have been duly authorized by all necessary corporate, partnership or other analogous and, if required, equityholder action. Each Loan Document has been duly executed and delivered by each of the Borrower and the Subsidiary Guarantors to the extent it is a party thereto and constitutes a legal, valid and binding obligation thereof, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally. Governmental Approvals; No Conflicts The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by laws or other organizational documents of the Borrower or any of the Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture, agreement or other instrument binding upon the Borrower or any of the Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of the Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of the Subsidiaries. Financial Condition; No Material Adverse Change The Borrower has heretofore furnished to the Credit Parties (i) its Form 10-K for the fiscal year ended June 30, 2003 containing the consolidated balance sheet and statements of income, stockholder's equity and cash flows of the Borrower and the Subsidiaries as of and for the fiscal year ended June 30, 2003 and June 30, 2002 reported on by PriceWaterhouseCoopers, LLP, independent public accountants, and (ii) its Form 10-Q for the fiscal quarter ended December 31, 2003, containing the consolidated balance sheet and statements of income and cash flows of the Borrower and the Subsidiaries as of and for the fiscal quarter and the portion of ended on December 31, 2003, certified by its chief financial officer. The consolidated financial statements referred to in clauses (i) and (ii) above present fairly, in all material respects, the financial position and results of operations and cash flows of the Borrower and consolidated Subsidiaries as of such dates and for the indicated periods in accordance with GAAP and are consistent with the books and records of the Borrower (which books and records are correct and complete), subject to year end audit adjustments and the absence of footnotes in the case of the statements referred to in clause (ii) above. Since June 30, 2003, there has been no material adverse change in the business, assets, operations, prospects or condition, financial or otherwise, of the Borrower and the Subsidiaries, taken as a whole. Properties Each of the Borrower and the Subsidiaries has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for minor defects in title that do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for their intended purposes. Each of the Borrower and the Subsidiaries owns, or is entitled to use, all franchises, licenses, trademarks, tradenames, copyrights, patents and other intellectual property material to its business, and the use thereof by the Borrower and the Subsidiaries does not infringe upon the rights of any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Litigation and Environmental Matters Except for the Disclosed Matters, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened against or affecting the Borrower or any of the Subsidiaries (i) that, if adversely determined, could reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (other than the Disclosed Matters) or (ii) that involve any Loan Document or the Transactions. Except for the Disclosed Matters and except with respect to any other matters that, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, neither the Borrower nor any of the Subsidiaries (i) have failed to comply with any Environmental Law or to obtain, maintain or comply with any permit, license or other approval required under any Environmental Law, (ii) have become subject to any Environmental Liability, (iii) have received notice of any claim with respect to any Environmental Liability or (iv) know of any basis for any Environmental Liability. Since the date of this Credit Agreement, there has been no change in the status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or materially increased the likelihood of, a Material Adverse Effect. Compliance with Laws and Agreements Each of the Borrower and the Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has occurred and is continuing. Investment and Holding Company Status Neither the Borrower nor any of the Subsidiaries are (a) an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940 or (b) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935. Taxes Each of the Borrower and the Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect. ERISA No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $2,000,000 the fair market value of the assets of such Plan, and the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $2,000,000 the fair market value of the assets of all such underfunded Plans. Disclosure The Borrower has disclosed to the Credit Parties (i) all agreements, instruments and corporate or other restrictions to which it or any of the Subsidiaries is subject and (ii) all other matters known to it, in each case that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of the Borrower or any Subsidiary to any Credit Party in connection with the negotiation of the Loan Documents or delivered thereunder (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, provided that, with respect to projected financial information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time. Subsidiaries Schedule 4.12 sets forth the name of, and the ownership interest of the Borrower in, each Subsidiary on the Agreement Date and identifies each such Subsidiary as a Domestic Subsidiary, a Foreign Subsidiary, Exempt Subsidiary and/or a Significant Subsidiary. Insurance Schedule 4.13 sets forth a description of all insurance maintained by or on behalf of the Borrower and the Subsidiaries as of the Agreement Date. As of the Agreement Date, all premiums in respect of such insurance that are due and payable have been paid. Labor Matters As of the Agreement Date, there are no strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower, threatened. The hours worked by and payments made to employees of the Borrower and the Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law dealing with such matters, except where any such violations, individually and in the aggregate, would not be reasonably likely to result in a Material Adverse Effect. All material payments due from the Borrower or any Subsidiary, or for which any claim may be made against the Borrower or any Subsidiary, on account of wages and employee health and welfare insurance and other benefits, have been paid or accrued as a liability on the books of the Borrower or such Subsidiary. The consummation of the Transactions will not give rise to any right of termination or right of renegotiation on the part of any union under any collective bargaining agreement to which the Borrower or any Subsidiary is bound. Solvency Immediately following the making of each Loan, if any, and the issuance of each Letter of Credit, if any, made or issued on the date thereof and after giving effect to the application of the proceeds of such Loan and such Letter of Credit, (a) the fair value of the assets of the Borrower and the Subsidiaries, taken as a whole, at a fair valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of the Borrower and the Subsidiaries, taken as a whole, will be greater than the amount that will be required to pay the probable liability of their debts and other liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) each of the Borrower and the Subsidiary Guarantors will be able to pay its debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured; and (d) each of the Borrower and the Subsidiary Guarantors will not have unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted following such date. Federal Reserve Regulations Neither the Borrower nor any of the Subsidiaries are engaged principally, or as one of their important activities, in the business of extending credit for the purpose of buying or carrying Margin Stock. Immediately before and after giving effect to the making of each Loan, Margin Stock will constitute less than 25% of the Borrower's assets as determined in accordance with Regulation U. No part of the proceeds of any Loan will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase, acquire or carry any Margin Stock, (ii) for any purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Board, including Regulation T, U or X, or (iii) to make a loan to any director or executive officer of the Borrower or any Subsidiary. CONDITIONS Closing Date The obligations of the Lenders to make Loans and of the Issuing Bank to issue New Letters of Credit hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 10.2): Credit Agreement. The Administrative Agent (or its counsel) shall have received from each party hereto either (i) a counterpart of this Credit Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include facsimile transmission of a signed signature page of this Credit Agreement) that such party has signed a counterpart of this Credit Agreement. Notes. The Administrative Agent shall have received a Note for each Lender and a Swingline Note for the Swingline Lender, signed on behalf of the Borrower. Legal Opinion. The Administrative Agent shall have received a favorable written opinion (addressed to the Credit Parties and dated the Closing Date) from Kevin J. Dell, Esq., Executive Vice President, Secretary and General Counsel of the Borrower and counsel to the Subsidiary Guarantors on behalf of the Loan Parties, substantially in the form of Exhibit B, and covering such other matters relating to the Loan Parties, the Loan Documents or the Transactions as the Required Lenders shall reasonably request. The Borrower hereby requests such counsel to deliver such opinion. Organizational Documents, etc. The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the (i) organization, existence and good standing of each Loan Party (including a certificate of incorporation or formation of the Borrower and each Subsidiary Guarantor and a certificate of good standing (or comparable certificates) for the Borrower and each Subsidiary Guarantor, certified as of a recent date prior to the Closing Date, by the Secretaries of State (or comparable official) of the jurisdiction of its incorporation or formation), (ii) the authorization of the Transactions, (iii) the incumbency of its officer or officers who may sign the Loan Documents, including therein a signature specimen of such officer or officers and (iv) any other legal matters relating to the Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory to the Administrative Agent and its counsel. Officer's Certificate. The Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Borrower, confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section 5.3. Fees and Expenses. The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder. Guarantee Agreement. The Administrative Agent shall have received counterparts of the Guarantee Agreement signed on behalf of the Borrower and each Subsidiary Guarantor. No Violation. The performance by each Loan Party of its obligations under each Loan Document shall not (i) violate any applicable law, statute, rule or regulation or (ii) conflict with, or result in a default or event of default under, any material agreement of any Loan Party or any other Subsidiary, and the Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Borrower, to the foregoing effects. No Litigation. The Lenders shall be reasonably satisfied (i) that, except for the Disclosed Matters, there shall be no litigation or administrative proceeding, or regulatory development, that would reasonably be expected to have a material adverse effect on (a) the business, assets, operations, prospects, condition (financial or otherwise) or material agreements of the Borrower and the Subsidiaries, taken as a whole, (b) the ability of any Loan Party to perform any of its obligations under any Loan Document or (c) the rights of or benefits available to any Credit Party under any Loan Document and (ii) with the current status of, and the terms of any settlement or other resolution of, any litigation or other proceedings brought against the Borrower or any Subsidiary by or on behalf of its subscribers or by any Governmental Authority relating to its business, and the Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Borrower, to the foregoing effects. No Other Indebtedness or Equity Interests. After giving effect to the Transactions, none of the Borrower or any of the Subsidiaries shall have outstanding any shares of preferred equity securities or any Indebtedness other than as permitted under Section 7.1, and the Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Borrower, to the foregoing effects. No Material Adverse Change. No material adverse change or material adverse condition in the business, assets, operations, properties, condition (financial or otherwise), liabilities (including contingent liabilities), prospects or material agreements of the Borrower and the Subsidiaries, taken as a whole, has occurred since June 30, 2003, and the Administrative Agent shall have received a certificate, dated the Closing Date and signed by the President, a Vice President or a Financial Officer of the Borrower, to the foregoing effects. Pro Forma Compliance. The Administrative Agent shall have received a certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, setting forth reasonably detailed calculations demonstrating compliance with Section 7.12 on a pro forma basis immediately after giving effect to the Transactions to occur on the Closing Date. Termination of Prior Loan Documents. After giving effect to the application of the proceeds of the Loans on the Closing Date, the Indebtedness under the Prior Loan Documents shall have been fully repaid, the Prior Loan Documents (including any Hedging Agreements issued by a lender or otherwise secured thereunder) shall have been canceled or terminated, the Borrower and each of the Subsidiaries shall have been released from all liability thereunder (other than indemnification obligations under the existing credit agreement which, by their terms, survive such termination), and the Administrative Agent shall have received reasonably satisfactory evidence thereof. The Administrative Agent shall be entitled to assume that each of the conditions set forth in Sections 5.1(i) and 5.1(k) have been satisfied unless it shall have received notice expressly to the contrary from a Credit Party or a Loan Party. Notwithstanding the foregoing, the obligations of the Lenders to make Loans and the Issuing Bank to issue Letters of Credit hereunder shall not become effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 10.2) at or prior to 3:00 p.m., New York City time, on April 30, 2004 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time). Conditions to Extensions of Credit in Connection with Acquisitions Permitted under Section 7.4(l) of this Credit Agreement In addition to the satisfaction on the Closing Date of the conditions set forth in Section 5.1 and the satisfaction of the conditions set forth in Section 5.3, the obligation of each Lender to make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue, amend, renew or extend a Letter of Credit, in each case where the proceeds of which are to be used directly or indirectly to make an acquisition permitted by Section 7.4(l) is subject to the satisfaction of the following conditions precedent as of the date of such Loan or such Letter of Credit: The Person to be acquired is engaged in substantially the same or a related business as any Subsidiary of the Borrower, including the software, financial services, transaction processing and outsourcing businesses, or in the case of an acquisition of a business or assets, such business is substantially the same as or related to, or such assets are devoted to a business that is substantially the same as or related to, as the case may be, the business of any Subsidiary of the Borrower. If the amount of such Borrowing exceeds $10,000,000 or the acquisition cost of the acquisition exceeds $20,000,000, the Administrative Agent and the Lenders shall have received historical financial statements of the Person or business to be acquired for not less than three years to the date of such acquisition or such lesser amount of time for which such statements exist. The Administrative Agent shall have received a certificate (in form and substance satisfactory to the Administrative Agent) of a Financial Officer to the effect that (and including calculations in reasonable detail indicating that), on a pro forma basis after giving effect to such acquisition, (i) all of the representations and warranties in the Loan Documents will be true and correct, (ii) no Default shall have occurred and be continuing, and (iii) certifying compliance with subsections (a) and (b) of Section 5.3. Each Credit Event The obligation of each Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, increase, amend, renew or extend a Letter of Credit, (each such event being called a "Credit Event") is subject to the satisfaction of the following conditions: The representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct on and as of the date of such Borrowing or the date of such issuance, increase, amendment, renewal or extension, as applicable. At the time of and immediately after giving effect to such Borrowing or such issuance, increase, amendment, renewal or extension, as applicable, no Default shall have occurred and be continuing. The Administrative Agent shall have received such other documentation and assurances as shall be reasonably required by it in connection therewith. Each Borrowing and each issuance, increase, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (a) and (b) of this Section. AFFIRMATIVE COVENANTS Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees and other amounts payable under the Loan Documents shall have been paid in full and all Letters of Credit have expired and all LC Disbursements have been reimbursed, the Borrower covenants and agrees with the Credit Parties that: Financial Statements and Other Information The Borrower will furnish to the Administrative Agent (with a copy thereof for each Lender, which shall be promptly delivered by the Administrative Agent to such Lender): within 90 days after the end of each fiscal year, (i) its Form 10-K containing its audited consolidated balance sheet and related statements of income, stockholders' equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PriceWaterhouseCoopers, LLP or other independent public accountants of recognized national standing (without a "going concern" or like qualification or exception and without any qualification or exception as to the scope of such audit) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied; within 45 days after the end of each of the first three fiscal quarters of each fiscal year, (i) its Form 10-Q containing its consolidated balance sheet and related statements of income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, and (ii) unaudited financial information for each of the Borrower's business lines, all certified by one of its Financial Officers as presenting fairly in all material respects the financial condition and results of operations of the Borrower and the consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year end audit adjustments and the absence of footnotes; concurrently with any delivery of financial statements under clause (a) or (b) above, a certificate of a Financial Officer (i) certifying as to whether a Default has occurred and, if a Default has occurred, specifying the details thereof and any action taken or proposed to be taken with respect thereto, (ii) setting forth reasonably detailed calculations demonstrating compliance with Section 7.12, (iii) setting forth the name of each Domestic Subsidiary which is a Significant Subsidiary and certifying that such Subsidiary is a Subsidiary Guarantor or an Exempt Subsidiary, and (iv) stating whether any material change in GAAP or in the application thereof in any material respect has occurred since the date of the audited financial statements referred to in Section 4.4 and, if any such change has occurred, specifying the effect of such change on the financial statements accompanying such certificate; promptly after the same become publicly available, copies of all periodic and other reports, proxy statements and other materials filed by the Borrower or any Subsidiary with the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of the functions of said Commission, or with any national securities exchange, or distributed by the Borrower to its shareholders generally, as the case may be; furnish to the Administrative Agent promptly such other information with documentation required by bank regulatory authorities under applicable "know your customer" and anti-money laundering rules and regulations (including, without limitation, Section 326 of the USA Patriot Act of 2001, 31 U.S.C. Section 5318), as from time to time may be reasonably requested by the Administrative Agent; and promptly following any request therefor, such other information regarding the operations, business affairs and financial condition of the Borrower or any Subsidiary, or compliance with the terms of the Loan Documents, as the Administrative Agent or any Lender may reasonably request. Notices of Material Events The Borrower will furnish to the Administrative Agent prompt written notice of the following (with a copy thereof for each Lender, which shall be promptly delivered by the Administrative Agent to such Lender): the occurrence of any Default; the filing or commencement of any action, suit or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Affiliate thereof that, if adversely determined, could in the good faith opinion of the Borrower reasonably be expected to result in a Material Adverse Effect; the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, could reasonably be expected to result in liability of the Borrower and the Subsidiaries in an aggregate amount exceeding $2,000,000; any other development that results in, or could reasonably be expected to result in, a Material Adverse Effect; and Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer or other executive officer of the Borrower setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto. Existence; Conduct of Business The Borrower will, and will cause each of the Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, licenses, permits, privileges and franchises material to the conduct of its business, provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 7.3. Payment of Obligations The Borrower will, and will cause each of the Subsidiaries to, pay its obligations, including Tax liabilities, that, if not paid, could result in a Material Adverse Effect before the same shall become delinquent or in default, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has set aside on its books adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect. Maintenance of Properties The Borrower will, and will cause each of the Subsidiaries to, keep and maintain all property material to the conduct of its business in good working order and condition, ordinary wear and tear excepted. Books and Records; Inspection Rights The Borrower will, and will cause each of the Subsidiaries to, keep proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower will, and will cause each of the Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times and as often as reasonably requested. Compliance with Laws The Borrower will, and will cause each of the Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. Use of Proceeds The proceeds of the Loans will be used only (i) to refinance or repay certain existing Indebtedness (ii) for working capital of the Borrower and the Subsidiaries, (iii) to reimburse the Issuing Bank in respect of LC Disbursements and (iv) to finance acquisitions permitted by Section 7.4(l). Letters of Credit shall be issued only in support of the obligation of the Borrower or a Subsidiary in favor of a beneficiary who has requested the issuance of a letter of credit (x) as a condition to a transaction entered into in the ordinary course of business, or (y) as support for Indebtedness permitted by Section 7.1(a) incurred by the Borrower in connection with an acquisition permitted by Section 7.4(l). No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly or indirectly, and whether immediately, incidentally or ultimately, (i) to purchase, acquire or carry any Margin Stock, (ii) for any purpose that entails a violation of any of the regulations of the Board, including Regulations T, U and X or (iii) to make a loan to any director or executive officer of the Borrower or any Subsidiary. The Borrower acknowledges that Lenders are subject to, among other laws, rules and regulations, Section 23A and Section 23B of the Federal Reserve Act, as amended from time to time, and hereby covenants and agrees not to use any Borrowing (or the proceeds thereof) or Letter of Credit for the specific purpose of benefiting or transferring any such Borrowing (or the proceeds thereof) or Letter of Credit to, any affiliate of any Lender, including without limitation, any Investment Company sponsored or organized by, or affiliated with any such Lender. Insurance The Borrower will, and will cause each of the Subsidiaries to, maintain, with financially sound and reputable insurance companies, adequate insurance for its insurable properties, all to such extent and against such risks, including fire, casualty, business interruption and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations. Additional Subsidiaries If any Domestic Subsidiary (other than an Exempt Subsidiary) is formed or acquired after the Closing Date and such Subsidiary is a Significant Subsidiary or if any Domestic Subsidiary (other than an Exempt Subsidiary) becomes a Significant Subsidiary, or if any Exempt Subsidiary that is a Significant Subsidiary ceases to be an Exempt Subsidiary, the Borrower will notify the Administrative Agent in writing thereof within ten Business Days after the date on which such Domestic Subsidiary is formed or acquired, becomes a Significant Subsidiary or ceases to be an Exempt Subsidiary, as applicable, and the Borrower will cause such Domestic Subsidiary to execute and deliver the Guarantee Agreement (or otherwise become a party thereto in the manner provided therein) within thirty days after the date on which such Subsidiary is formed or acquired, becomes a Significant Subsidiary or ceases to be an Exempt Subsidiary, as applicable, together with such certificates and legal opinions as the Administrative Agent shall require. Environmental Compliance The Borrower shall, and shall cause each of the Subsidiaries to, use and operate all of its facilities and property in compliance with all Environmental Laws, keep all necessary permits, approvals, certificates, licenses and other authorizations relating to environmental matters in effect and remain in compliance therewith, and handle all Hazardous Materials in compliance with all applicable Environmental Laws, except where noncompliance with any of the foregoing could not reasonably be expected to have a Material Adverse Effect. NEGATIVE COVENANTS Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees and other amounts payable under the Loan Documents shall have been paid in full and all Letters of Credit have expired and all LC Disbursements have been reimbursed, the Borrower covenants and agrees with the Credit Parties that: Indebtedness; Equity Securities The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except: Indebtedness under the Loan Documents; (A) Indebtedness existing on the date hereof and set forth in Schedule 7.1, including, except as set forth in the proviso below, refinancings thereof but not increases in the amount of any thereof, provided that refinancings of such existing Indebtedness shall not be permitted unless the interest rate on any such refinanced Indebtedness is not in excess of the rate available for similar borrowings by similar borrowers at the time of the refinancing, the final maturity of such refinanced Indebtedness is not earlier than the Maturity Date, and if the Indebtedness being refinanced is subordinated to the Indebtedness under the Loan Documents, such refinanced Indebtedness shall be so subordinated on the same terms and to the same extent as such Indebtedness being so refinanced and (B) Indebtedness under the Prior Agreement and all agreements, instruments and other documents executed or delivered in connection therewith, provided that such Indebtedness is fully repaid on or before the Closing Date; Indebtedness of the Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that (A) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (iii) shall not exceed $10,000,000 at any time outstanding; Indebtedness of any Person that becomes a Subsidiary after the date hereof or which is otherwise incurred in connection with an acquisition permitted by Section 7.4(l), provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary or such acquisition, as applicable, and is not created in contemplation of or in connection with such Person becoming a Subsidiary, or such acquisition, as applicable, and (B) the aggregate principal amount of Indebtedness permitted by this clause (iv) shall not exceed $10,000,000 at any time outstanding; Indebtedness of (A) the Borrower to any Domestic Subsidiary and of any Domestic Subsidiary to the Borrower or any other Domestic Subsidiary and (B) to the extent permitted by Section 7.4(d), the Borrower to any Foreign Subsidiary and of any Foreign Subsidiary to the Borrower or any other Foreign Subsidiary or Domestic Subsidiary; Guarantees by (A) the Borrower of Indebtedness of any Domestic Subsidiary and by any Domestic Subsidiary of Indebtedness of the Borrower or any other Domestic Subsidiary and (B) any Foreign Subsidiary of Indebtedness of the Borrower and by any Foreign Subsidiary of Indebtedness of any other Foreign Subsidiary or Domestic Subsidiary; Indebtedness of the Borrower incurred in connection with an acquisition permitted by Section 7.4(l), provided that (A) such Indebtedness is subordinated to the Indebtedness under the Loan Documents on terms and in form and substance satisfactory to the Administrative Agent and Required Lenders and (B) at the time of the incurrence thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing; Acquisition Related Contingent Payments incurred after the Closing Date with respect to acquisitions permitted by Section 7.4(l), which, at the time of the incurrence thereof, are commercially reasonable under the circumstances; Indebtedness of the Borrower under performance Guarantees of the obligations of the Subsidiaries, provided that (A) such Guarantee is required as a condition of a Person retaining the services of a Subsidiary of the Borrower, (B) the obligations which are Guaranteed are not financial obligations (other than financial obligations incurred in the ordinary course of business), and (C) to the extent that any such obligations are financial obligations, (1) such obligations are not in excess of $20,000,000 in the aggregate or (2) the Guarantee in respect of such obligations is in a form to be negotiated that is mutually satisfactory to the Administrative Agent and the Borrower; Indebtedness of the Borrower in respect of operating or capital leases of one or more of the Subsidiaries provided that in the case of Guarantees in respect of Capital Lease Obligations, such Capital Lease Obligations are permitted to be incurred pursuant to clause (iii) above; Indebtedness of a Subsidiary of the Borrower in respect of Compensation Financings, provided that (A) at the time of the incurrence thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, and (B) such Indebtedness shall be unsecured or, if secured, shall be secured only by the 12b-1 Fees and/or Contingent Deferred Sales Commissions to which such Subsidiary is entitled from the Investment Company or its shareholders which is the subject of such Compensation Financings; in addition to Indebtedness permitted under clause (iii) above, Capital Lease Obligations in connection with sale and leaseback transactions to the extent permitted by Section 7.6; Indebtedness in respect of Subordinated Notes in an aggregate amount not in excess of $300,000,000; Indebtedness of the Borrower or any of the Subsidiaries incurred in connection with a sale of receivables in respect of 12b-1 Fees and Contingent Deferred Sales Commissions, provided that at the time of the incurrence thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing; Indebtedness of the Borrower or any of the Subsidiaries incurred in connection with a sale of receivables (other than receivables described in clause (xiv) above) in a Securitization transaction permitted by Section 7.5(e)(ii), provided that (A) at the time of the incurrence thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, and (B) the creditor in respect of such Indebtedness shall have no recourse to the Borrower or such Subsidiary but may have recourse only to such receivables (including the right to require the Borrower or such Subsidiary to repurchase such receivables); unsecured subordinated Indebtedness (the "Subordinated Refinancing Notes") of the Borrower which refinances in full the Subordinated Notes in an aggregate principal amount not in excess of the outstanding principal amount of the Subordinated Notes at the time of the issuance thereof; provided that (A) immediately before and after giving effect to the issuance of the Subordinated Refinancing Notes, no Default shall or would have occurred and be continuing, (B) the stated maturity thereof shall not be earlier than, and no amortization or other prepayment of principal (including as a result of a redemption, defeasance or put) shall be required prior to, April 1, 2009, (C) such Indebtedness is issued on terms, including subordination terms, and conditions acceptable to the Administrative Agent and Required Lenders (it being understood and agreed that subordination terms substantially identical to the comparable terms of the Subordinated Notes shall be deemed acceptable); and other unsecured Indebtedness of the Borrower (the "Permitted Notes") in an aggregate principal amount not in excess of $300,000,000; provided that (A) at the time of the incurrence thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing, (B) the maturity date thereof shall be later than the Maturity Date, (C) the covenants applicable thereto shall be no more restrictive to the Borrower and the Subsidiaries than the covenants in this Credit Agreement (D) the events of default applicable thereto shall be no more extensive than the Events of Default, and (E) prior to the issuance thereof the Borrower shall deliver a certificate of a Financial Officer demonstrating pro forma compliance with Section 7.12 (attaching calculations in reasonable detail). The Borrower will not, and it will not permit any Subsidiary to, (i) issue any equity securities which are of a class or series that, either by its terms, by the terms of any security into which it is convertible or exchangeable at the option of the holder thereof by contract or otherwise, is, or upon the happening of an event or passage of time would be, required to be redeemed prior to the Maturity Date or is redeemable at the option of the holder thereof at any time on or prior to the Maturity Date, or is convertible into or exchangeable at the option of the holder thereof for debt securities at any time prior to the Maturity Date (as from time to time extended), or (ii) be or become liable in respect of any obligation (contingent or otherwise) to purchase, redeem, retire, acquire or make any other payment in respect of any shares of equity securities of the Borrower or any Subsidiary or any option, warrant or other right to acquire any such shares of equity securities, except as permitted under Section 7.8. Liens The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except: Liens created under the Loan Documents; Permitted Encumbrances; any Lien on any property or asset of the Borrower or any Subsidiary existing on the date hereof and set forth in Schedule 7.2, provided that (i) such Lien shall not apply to any other property or asset of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it secures on the date hereof and any extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof; any Lien existing on any property or asset prior to the acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary, provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as applicable, (ii) such Lien shall not apply to any other property or assets of the Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations that it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as applicable, and any extensions, renewals and replacements thereof that do not increase the outstanding principal amount thereof; Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any Subsidiary, provided that (i) such security interests secure Indebtedness permitted by clause (iii) of Section 7.1, (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Borrower or any Subsidiary; and Liens on receivables (i) in respect of 12b-1 Fees and Contingent Deferred Sales Commissions to secure Indebtedness permitted by Section 7.1(a)(xiv) and (ii) sold in a Securitization transaction permitted by Section 7.5(e) to secure Indebtedness permitted by Section 7.1(a)(xv). Fundamental Changes; Line of Business; Fiscal Year The Borrower will not, and will not permit any Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge into or consolidate with it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of transactions) all or substantially all of its assets, or all or substantially all of the equity securities of any of the Subsidiaries (in each case, whether now owned or hereafter acquired), or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect thereto, no Default shall have occurred and be continuing: any Subsidiary may merge into the Borrower in a transaction in which the Borrower is the surviving entity, any Subsidiary may merge into any Subsidiary Guarantor in a transaction in which such Subsidiary Guarantor is the surviving entity; any Subsidiary may merge with any Person in a transaction that is not permitted by clause (i) of this Section 7.3(a), provided that such merger is permitted by Section 7.4 or 7.5, as applicable; any Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the Borrower or to any Subsidiary Guarantor; any Subsidiary that is not a Subsidiary Guarantor may merge into another Subsidiary that is not a Subsidiary Guarantor; any Subsidiary Guarantor may merge into a Subsidiary that is not a Subsidiary Guarantor; provided, that the surviving entity of such merger shall become a Subsidiary Guarantor prior to the effectiveness of such merger; and the Borrower or any Subsidiary may sell, transfer, lease or otherwise dispose of its assets in a transaction that is not permitted by clause (iii) of this Section 7.3(a), provided that such sale, transfer, lease or other disposition is also permitted by Section 7.5. The Borrower will not, and will not permit any of the Subsidiaries to, engage to any material extent in any business other than businesses of the type conducted by the Borrower and the Subsidiaries on the date of execution of this Credit Agreement and businesses directly related thereto. The Borrower will not, and will not permit any of the Subsidiaries to, change its fiscal year, provided that a Subsidiary whose fiscal year end is not June 30 may change to a June 30 fiscal year end. Investments, Loans, Advances, Guarantees and Acquisitions The Borrower will not, and will not permit any of the Subsidiaries to, purchase, hold or acquire (including pursuant to any merger) any capital stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions (including pursuant to any merger)) any assets of any other Person constituting a business unit, except: Permitted Investments; investments existing on the date hereof and set forth in Schedule 7.4; investments made (i) by the Borrower in the equity securities of any wholly-owned Domestic Subsidiary, (ii) by any wholly-owned Domestic Subsidiary in the equity securities of any other wholly-owned Domestic Subsidiary, (iii) by the Borrower or any Domestic Subsidiary in the equity securities of any wholly-owned Foreign Subsidiary, provided that the aggregate amount of such investments shall not exceed $5,000,000, and (iv) by any wholly-owned Foreign Subsidiary in the equity securities of any other wholly-owned Subsidiary; loans or advances made (i) by the Borrower to any wholly-owned Domestic Subsidiary, (ii) by any wholly-owned Domestic Subsidiary to the Borrower or any wholly-owned Domestic Subsidiary, (iii) by any wholly-owned Foreign Subsidiary to another wholly-owned Foreign Subsidiary, and (iv) by the Borrower or any Subsidiary Guarantor to any Foreign Subsidiary; provided that (A) such loans or advances shall be repayable on demand, (B) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (C) the outstanding principal amount of loans and advances described in clause (iv) shall not exceed $20,000,000 outstanding at any time, (D) at such time as the aggregate amount of loans and advances described in clause (iv) shall exceed $10,000,000, demand promissory notes evidencing all loans and advances described in clause (iv) shall be pledged as collateral to the Administrative Agent pursuant to documentation in form and substance satisfactory to the Administrative Agent and (E) the Borrower shall not permit any Subsidiary that is an Investment Company within the meaning of the 1940 Act or a Person deemed to be an "investment company" to incur Indebtedness described in this subsection (d) as a result of the Borrower or any other Subsidiary making an investment in such Subsidiary with the proceeds of Loans or Letters of Credit; acquisitions made by the Borrower from any Domestic Subsidiary and made by any Domestic Subsidiary from the Borrower or any other Domestic Subsidiary; investments consisting of loans to employees of the Borrower or any of the Subsidiaries made in the ordinary course of business, provided that at the time of such loans and immediately after giving effect thereto no Default shall have occurred and be continuing, provided further that no such loans shall be made to any director or executive officer of (i) the Borrower or (ii) any Subsidiary, in each case to the extent it will be a violation of applicable law; investments consisting of minority interests in substantially the same or a related business to that of the Borrower or any of the Subsidiaries in an aggregate amount not to exceed $20,000,000, provided that at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing; investments in shares of an Investment Company for which a Subsidiary is a principal underwriter named in such Investment Company's registration statement under the 1940 Act, provided that (i) such shares are acquired by such Subsidiary prior to the public offering of such Investment Company's shares, (ii) such shares are acquired by such Subsidiary solely for purposes of enabling such Investment Company to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act, and (iii) the amount paid for such shares is limited to the amount necessary to enable such Investment Company to satisfy the net worth requirement of Section 14(a)(1) of the 1940 Act plus an additional $20,000,000 in the aggregate for all such investments, it being understood that nothing herein shall require the sale of any such shares; investments in shares of open end management Investment Companies, provided that after giving effect to any such investment, the consideration paid for such shares, when aggregated with the consideration paid for all other such shares then held by the Borrower and the Subsidiaries, shall not exceed 10% of the value of Consolidated Total Assets as at such time of such investment; in addition to investments permitted by subsection (c) above, capital contributions by the Borrower or any Subsidiary thereof to Exempt Subsidiaries (other than a Subsidiary of the Borrower that is an Exempt Subsidiary solely because of the applicability of clause (iii) of the definition of "Exempt Subsidiary"), provided that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, and (ii) the amount of any such investment shall not exceed the amount necessary to meet the net capital requirements applicable to such Exempt Subsidiaries; acquisitions by the Borrower or any Subsidiary of rights under a contract or group of related contracts with a customer that had previously been a party to a similar contract or group of contracts with another Person with respect to which the Borrower or such Subsidiary has agreed to pay a fee to such Person upon the successful negotiation, execution and delivery of a replacement contract or group of contracts with such customer within a specified period of time provided, that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (ii) the Total Leverage Ratio on a pro forma basis for the period of four consecutive quarters immediately succeeding the date on which such rights are acquired is less than 3.50:1.00 and (iii) the Administrative Agent and the Lenders shall have received a certificate (in form and substance satisfactory to the Administrative Agent) of a Financial Officer of the Borrower to the foregoing effect, setting forth calculations in reasonable detail; and in addition to the acquisition of rights described in subsection (k) above, other investments, loans, advances, Guarantees and acquisitions, provided that (i) at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing and (ii) in the case of an acquisition financed in whole or in part with the proceeds of Loans, the conditions set forth in Section 5.2 shall have been satisfied. Asset Sales The Borrower will not, and will not permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant to a merger) of any asset, including any equity securities, nor will the Borrower permit any of the Subsidiaries to issue any additional shares of its equity securities, except: sales, transfers, leases and other dispositions of inventory, used or surplus equipment and Permitted Investments, in each case in the ordinary course of business; sales, transfers, leases and other dispositions made by the Borrower to any Domestic Subsidiary and made by any Domestic Subsidiary to the Borrower or any other Domestic Subsidiary; if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, other sales, transfers, leases and other dispositions of assets, provided that (i) the assets sold, transferred, leased or otherwise disposed of shall have (x) contributed less than 15% of Consolidated EBITDA during the immediately preceding four fiscal quarters and (y) represent less than 15% of Consolidated Total Assets as of the most recently completed fiscal quarter, (ii) the aggregate fair market value of all assets, sold, transferred, leased or otherwise disposed of in reliance upon this subsection (d) shall not exceed 15% of Consolidated Total Assets as of the most recently completed fiscal quarter, and (iii) all sales, transfers, leases and other dispositions permitted by this subsection (d) shall be made for fair value and solely for cash consideration; sales in respect of sale and leaseback transactions to the extent permitted by Section 7.6; and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) sales of receivables in respect of 12b-1 Fees and Contingent Deferred Sales Commissions, provided that any Indebtedness incurred in connection with such receivables shall be permitted by Section 7.1(a)(xiv) and (ii) sales of receivables (other than receivables described in clause (i) above) in connection with a Securitization thereof, provided that (x) any Indebtedness incurred in connection with such receivables shall be permitted by Section 7.1(a)(xv) and (y) the amount of such receivables sold in any period of 12 consecutive months shall not exceed $100,000,000. Sale and Lease Back Transactions The Borrower will not, and will not permit any of the Subsidiaries to, enter into any arrangement, directly or indirectly, with any Person whereby it shall sell or transfer any property, real or personal, used or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold or transferred if the aggregate amount of rental payments to be made in connection with all such transactions would exceed $20,000,000 in the aggregate. Hedging Agreements The Borrower will not, and will not permit any of the Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements entered into in the ordinary course of business (including those entered into specifically in connection with one or more underlying business transactions) to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities. Restricted Payments The Borrower will not, and will not permit any of the Subsidiaries to, declare or make, or agree to pay for or make, directly or indirectly, any Restricted Payment, except that: the Borrower may declare and pay dividends with respect to its equity securities payable solely in additional shares of its equity securities; any wholly-owned Subsidiary may declare and pay dividends with respect to its equity securities to the Borrower or any other Subsidiary; and if at the time thereof and immediately after giving effect thereto no Default shall have occurred and be continuing, (i) the Borrower may repurchase shares of its capital stock (including repurchases in connection with the exercise of options granted to an employee of the Borrower or any of its Subsidiaries under any stock option or employee stock purchase plan of the Borrower); provided that such shares are used as consideration for an acquisition permitted by Section 7.4(l) within one hundred and twenty (120) days of such repurchase; and (ii) the Borrower may repurchase shares of its capital stock, not subject to or included in the limitation in subsection (i) of this subsection (c), in an aggregate amount not in excess of $60,000,000 in any fiscal year on a non-cumulative basis, provided further, that if the Borrower receives any amounts in cash during such fiscal year as the result of the exercise of any option granted to an employee of the Borrower or any of its Subsidiaries under any stock option or employee stock purchase plan of the Borrower, the portion of the foregoing $60,000,000 limitation utilized during such fiscal year shall be reduced by the amounts so received. Transactions with Affiliates The Borrower will not, and will not permit any of the Subsidiaries to, sell, transfer, lease or otherwise dispose (including pursuant to a merger) any property or assets to, or purchase, lease or otherwise acquire (including pursuant to a merger) any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrower or such Subsidiary than could be obtained on an arms length basis from unrelated third parties, provided that this Section shall not apply to any transaction that is permitted under Section 7.1, 7.3, 7.4, 7.5 or 7.8, between or among the Loan Parties and not involving any other Affiliate. Restrictive Agreements The Borrower will not, and will not permit any of the Subsidiaries to, directly or indirectly, enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any shares of its equity securities or to make or repay loans or advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary, provided that (i) the foregoing shall not apply to restrictions and conditions imposed by law or by this Credit Agreement, (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof identified on Schedule 7.10 (but shall apply to any extension or renewal of, or any amendment or modification expanding the scope of, any such restriction or condition), (iii) the foregoing shall not apply to customary restrictions and conditions contained in agreements relating to the sale of a Subsidiary pending such sale, provided that such restrictions and conditions apply only to the Subsidiary that is to be sold and such sale is permitted hereunder, (iv) clause (a) of this Section shall not apply to restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Credit Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness and (v) clause (a) of this Section shall not apply to customary provisions in leases restricting the assignment thereof. Amendment of Material Documents The Borrower will not, and will not permit any Subsidiary to, amend or modify its certificate of incorporation, by laws or other organizational documents, other than amendments, modifications or waivers that would not reasonably be expected to adversely affect the Credit Parties. Financial Covenants Total Leverage Ratio. The Borrower will not permit the Total Leverage Ratio at any time to be greater than 3.50:1.00. Senior Leverage Ratio. The Borrower will not permit the Senior Leverage Ratio at any time to be greater than 2.50:1.00. Fixed Charge Coverage Ratio. The Borrower will not permit the Fixed Charge Coverage Ratio as of the end of any fiscal quarter to be less than 2.00:1.00. Consolidated Net Worth. The Borrower will not permit Consolidated Net Worth as of the last day of each fiscal quarter to be less than the sum, without duplication, of (i) $685,842,900, plus (ii) 60% of Consolidated Net Income (if positive) for each fiscal quarter commencing after December 31, 2003 to the date of such determination, plus (iii) with respect to any issuance of by the Borrower of Equity Interests (other than treasury stock) after the Closing Date, (A) in the case of any such issuance in connection with an acquisition, 85% of the total increase in its stockholder's equity as a result of such acquisition and (B) in all other cases, 85% of the total net proceeds received by it from such issuance. Ratio of Funded Indebtedness to Capitalization. The Borrower will not at any time permit the ratio of (i) Consolidated Total Debt to (ii) the sum of (x) Consolidated Net Worth plus (y) Consolidated Total Debt to be greater than 0.50:1.00. EVENTS OF DEFAULT If any of the following events (each an "Event of Default") shall occur: the Borrower shall fail to pay any principal of any Loan or any reimbursement obligation in respect of any LC Disbursement when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; the Borrower shall fail to pay any interest on any Loan or on any reimbursement obligation in respect of any LC Disbursement or any fee, commission or any other amount (other than an amount referred to in clause (a) of this Article) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of three Business Days; any representation or warranty made or deemed made by or on behalf of any Loan Party or any other Subsidiary in or in connection with any Loan Document or any amendment or modification hereof or waiver thereunder, or in any report, certificate, financial statement or other document furnished pursuant to or in connection with any Loan Document or any amendment or modification hereof or waiver thereunder, shall prove to have been incorrect in any material respect when made or deemed made; the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Section 6.3, 6.8, or 6.10 or in Article 7, or any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any other Loan Document, in each case to which it is a party; any Loan Party shall fail to observe or perform any covenant, condition or agreement contained in any Loan Document to which it is a party (other than those specified in clause (a), (b) or (d) of this Article), and such failure shall continue unremedied for a period of 30 days after a Responsible Officer of such Loan Party shall have obtained knowledge thereof; the Borrower or any Subsidiary shall fail to make any payment (whether of principal or interest and regardless of amount) in respect of any Material Indebtedness, when and as the same shall become due and payable (after giving effect to any applicable grace period); any event or condition occurs that results in any Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with or without the giving of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity (in each case after giving effect to any applicable grace period), provided that this clause (g) shall not apply to secured Indebtedness that becomes due solely as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness; an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower, any Significant Subsidiary or any other Loan Party or its debts, or of a substantial part of its assets, under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any Significant Subsidiary or any other Loan Party or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days or an order or decree approving or ordering any of the foregoing shall be entered; the Borrower, any Significant Subsidiary or any other Loan Party shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower, any Significant Subsidiary or any other Loan Party or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing; the Borrower, any Significant Subsidiary or any other Loan Party shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; one or more judgments for the payment of money in an aggregate amount in excess of $10,000,000 (exclusive of amounts covered by insurance issued by an insurer not an Affiliate of the Borrower that does not dispute coverage) shall be rendered against the Borrower or any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 30 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Borrower or any Subsidiary to enforce any such judgment; an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when taken together with all other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse Effect; any Loan Document shall cease, for any reason, to be in full force and effect, or any Loan Party shall so assert in writing or shall disavow any of its obligations thereunder or a Change in Control shall occur; then, and in every such event (other than an event described in clause (h) or (i) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions (whether before or after the Closing Date), at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of each Loan Party accrued under the Loan Documents, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event described in clause (h) or (i) of this Article, the Commitments shall automatically terminate (whether before or after the Closing Date) and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of each Loan Party accrued under the Loan Documents, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. THE ADMINISTRATIVE AGENT Each Credit Party hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto. The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (i) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (ii) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated by the Loan Documents that the Administrative Agent is required to exercise in writing by the Required Lenders (or such other number or percentage of the Credit Parties as shall be necessary under the circumstances as provided in Section 10.2), and (iii) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower, any of the Subsidiaries or any other Loan Party that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Credit Parties as shall be necessary under the circumstances as provided in Section 10.2) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Credit Party (and, promptly after its receipt of any such notice, it shall give each Credit Party and the Borrower notice thereof), and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with any Loan Document, (b) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth therein, (d) the validity, enforceability, effectiveness or genuineness thereof or any other agreement, instrument or other document or (e) the satisfaction of any condition set forth in Article 5 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Loan Parties), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub agents appointed by the Administrative Agent, provided that no such delegation shall serve as a release of the Administrative Agent or waiver by the Borrower of any rights hereunder. The Administrative Agent and any such sub agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub agent and to the Related Parties of the Administrative Agent and any such sub agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. Subject to the appointment and acceptance of a successor Administrative Agent as provided in this paragraph, the Administrative Agent may resign at any time by notifying the Credit Parties and the Borrower. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Borrower, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Credit Parties, appoint a successor Administrative Agent which shall be a commercial bank with an office in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the Administrative Agent's resignation hereunder, the provisions of this Article and Section 10.3 shall continue in effect for the benefit of such retiring Administrative Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent. Each Credit Party acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Credit Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Credit Agreement. Each Credit Party also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Credit Party and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon any Loan Document, any related agreement or any document furnished thereunder. Notwithstanding anything in any Loan Document to the contrary, no Agent acting in such capacity other than the Administrative Agent shall have any duty or obligation under the Loan Documents. MISCELLANEOUS Notices Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile, as follows: if to the Borrower, to it at The BISYS Group, Inc., 90 Park Avenue, New York, New York 10016, Attention of the Chief Financial Officer thereof (Telephone No. (212) 907-6000, Facsimile No. (212) 907-6001) with a copy to The BISYS Group, Inc., 90 Park Avenue, New York, New York 10016, Attention of the General Counsel thereof (Telephone No. (212) 907-6036, Facsimile No. (212) 907-6035)); if to the Administrative Agent, or BNY as Issuing Bank to it at One Wall Street, New York, New York 10286, Attention of: Ramona Washington (Telephone No. (212) 635-4699; Facsimile No. (212) 635-6365 or 6366 or 6367); with a copy to The Bank of New York, at 385 Rifle Camp Road, West Paterson, NJ 07424, Attention of: Steven L. Wexler (Telephone No. (973) 357-7756; Facsimile No. (973) 357-7705); and if to any other Credit Party, to it at its address (or facsimile number) set forth in its Administrative Questionnaire. Any party hereto may change its address or facsimile number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Credit Agreement shall be deemed to have been given on the date of receipt. Waivers; Amendments No failure or delay by any Credit Party in exercising any right or power under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Credit Parties under the Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan and/or the issuance, amendment, extension or renewal of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether any Credit Party may have had notice or knowledge of such Default at the time. Neither any Loan Document nor any provision thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders, provided that no such agreement shall (i) increase any Commitment of any Lender without the written consent of such Lender, or increase the amount of the Letter of Credit Commitment without the consent of the Issuing Bank, (ii) reduce the principal amount of any Loan or any reimbursement obligation with respect to a LC Disbursement, or reduce the rate of any interest (other than under Section 3.1(d)), or reduce any fees, payable under the Loan Documents, without the written consent of each Credit Party affected thereby, (iii) postpone the date of payment at stated maturity of any Loan, the date of any amortization payment under Section 2.8(b) or the date of payment of any reimbursement obligation with respect to an LC Disbursement, any interest or any fees payable under the Loan Documents, or reduce the amount of, waive or excuse any such payment, or postpone the stated termination or expiration of the Revolving Commitments without the written consent of each Credit Party affected thereby, (iv) change any provision hereof in a manner that would alter the pro rata sharing of payments required by Section 2.11(b), without the written consent of each Credit Party affected thereby, (v) change any of the provisions of this Section or the definitions of the terms "Required Lenders" or "Supermajority Lenders" or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, or change the currency in which Loans are to be made, Letters of Credit are to be issued or payment under the Loan Documents is to be made, or add additional borrowers, without the written consent of each Lender, (vi) release any Subsidiary Guarantor from its Guarantee under the Guarantee Documents (except as expressly provided therein), or limit its liability in respect of such Guarantee, without the written consent of each Lender, provided that a Subsidiary Guarantor which, as of the last day of the most recently completed fiscal quarter, represented less than 3% of Consolidated Total Assets and which represented less than 3% of Consolidated EBITDA for the four consecutive quarter period ending on such day, may be released from its Guarantee under the Guarantee Documents or its liability limited in respect of such Guarantee so long as the sum of the percentages of Consolidated Total Assets and Consolidated EBITDA for all Subsidiary Guarantors released under this proviso does not exceed 10% and the Supermajority Lenders consent thereto in writing, and provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the Issuing Bank or the Swingline Lender, as applicable. Expenses; Indemnity; Damage Waiver The Borrower shall pay (i) all reasonable out-of-pocket costs and expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of each Loan Document or any amendments, modifications or waivers of the provisions thereof (whether or not the transactions contemplated thereby shall be consummated), (ii) all out-of-pocket costs and expenses incurred by the Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket costs and expenses incurred by any Credit Party, including the reasonable fees, charges and disbursements of any counsel for any Credit Party and any consultant or expert witness fees and expenses, in connection with the enforcement or protection of its rights in connection with the Loan Documents, including its rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all such reasonable out-of-pocket costs and expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit. The Borrower shall defend and indemnify each Credit Party and each Related Party thereof (each such Person being called an "Indemnitee") against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the reasonable fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of any Loan Document or any agreement or instrument contemplated thereby, the performance by the parties to the Loan Documents of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated thereby, (ii) any Loan or Letter of Credit or the use of the proceeds thereof including any refusal of the Issuing Bank to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit, (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of the Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of the Subsidiaries or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee. To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent or the Issuing Bank, as applicable, an amount equal to the product of such unpaid amount multiplied by a fraction, the numerator of which is the sum of such Lender's unused Commitments(other than the Swingline Commitment), the outstanding principal balance of such Lender's Loans and such Lender's LC Exposure and the denominator of which is the sum of the unused Commitments(other than the Swingline Commitment), the outstanding principal balance of all Lenders Loans and the LC Exposure of all Lenders (in each case determined as of the time that the applicable unreimbursed expense or indemnity payment is sought or, in the event that no Lender shall have any unused Commitments, outstanding Loans or LC Exposure at such time, as of the last time at which any Lender had any unused Commitments(other than the Swingline Commitment), outstanding Loans or LC Exposure), provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as applicable, was incurred by or asserted against the Administrative Agent or the Issuing Bank, as applicable, in its capacity as such. To the extent permitted by applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct and actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement, instrument or other document contemplated thereby, the Transactions or any Loan or any Letter of Credit or the use of the proceeds thereof. All amounts due under this Section shall be payable promptly but in no event later than ten days after written demand therefor. Successors and Assigns The provisions of the Loan Documents shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Credit Party (and any attempted assignment or transfer by the Borrower without such consent shall be null and void). Nothing in the Loan Documents, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of each Credit Party) any legal or equitable right, remedy or claim under or by reason of any Loan Document. Any Lender may assign to one or more assignees all or a portion of its rights and obligations under the Loan Documents (including all or a portion of its Revolving Commitment or obligations in respect of its LC Exposure or Swingline Exposure and/or Term Commitment and the applicable Loans at the time owing to it), provided that (i) except in the case of an assignment to a Lender or an Affiliate or an Approved Fund of a Lender, each of the Borrower and the Administrative Agent (and, in the case of an assignment of all or any portion of its Revolving Commitment or obligations in respect of its LC Exposure or Swingline Exposure, the Issuing Bank and/or the Swingline Lender, as the case may be) must give its prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed)), (ii) except in the case of an assignment to a Lender or an Affiliate or an Approved Fund of a Lender or an assignment of the entire remaining amount of the assigning Lender's Revolving Commitment and/or Term Commitment, as applicable, and the applicable Loans at the time owing to it, the aggregate amount of the Revolving Commitment and/or Term Commitment (or Term Loans), as applicable, of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall not be less than $10,000,000 unless the Borrower and the Administrative Agent otherwise consent, (iii) no assignments to the Borrower or any of its Affiliates shall be permitted, (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance together with, unless otherwise agreed by the Administrative Agent, a processing and recordation fee of $3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire, and provided, further, that any consent of the Borrower otherwise required under this paragraph shall not be required if a Default has occurred and is continuing. Subject to acceptance and recording thereof pursuant to paragraph (d) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under the Loan Documents, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under the Loan Documents (and, in the case of an Assignment and Acceptance covering all of the assigning Lender's rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.5, 3.6, 3.7 and 10.3). Any assignment or transfer by a Lender of rights or obligations under the Loan Documents that does not comply with this paragraph shall be treated for purposes of the Loan Documents as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section. The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive absent clearly demonstrable error, and the Borrower and each Credit Party may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Credit Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Credit Party, at any reasonable time and from time to time upon reasonable prior notice. Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee's completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Acceptance and promptly record the information contained therein in the Register. No assignment shall be effective for purposes of this Credit Agreement unless it has been recorded in the Register as provided in this paragraph. Unless an assignee shall already be a Lender hereunder, the Borrower shall execute and deliver a Note to such assignee. Any Lender may, without the consent of the Borrower or any Credit Party, sell participations to one or more banks or other entities other than the Borrower or any of its Affiliates (each such bank or other entity being called a "Participant") in all or a portion of such Lender's rights and obligations under the Loan Documents (including all or a portion of its Commitments, LC Exposure, Swingline Exposure and outstanding Loans owing to it), provided that (i) such Lender's obligations under the Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Loan Parties and the Credit Parties shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under the Loan Documents. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce the Loan Documents and to approve any amendment, modification or waiver of any provision of any Loan Documents, provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 10.2(b) that affects such Participant. Subject to paragraph (f) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.5, 3.6 and 3.7 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.8 as though it were a Lender, provided that such Participant agrees to be subject to Section 2.11(c) as though it were a Lender. A Participant shall not be entitled to receive any greater payment under Section 3.5 or 3.7 than the Lender that sold the participation to such Participant would have been entitled to receive with respect to the interest in the Loan Documents subject to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.7 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.7(e) as though it were a Lender. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under the Loan Documents to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest, provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations under the Loan Documents or substitute any such pledgee or assignee for such Lender as a party hereto. Survival All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments prepared or delivered in connection with or pursuant to this Credit Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of any Loan Document and the making of any Loans and the issuance of any Letter of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that any Credit Party may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any LC Disbursement or any fee or any other amount payable under the Loan Documents is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 3.5, 3.6, 3.7 and 10.3, 10.9, 10.10 and Article 9 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans and the LC Disbursements, the expiration or termination of the Letters of Credit and the termination of the Commitments or the termination of this Credit Agreement or any provision hereof. Counterparts; Integration; Effectiveness This Credit Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which, when taken together, shall constitute but one contract. This Credit Agreement and any separate letter agreements with respect to fees payable to any Credit Party or the syndication of the credit facilities established hereunder constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.1, this Credit Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of this Credit Agreement by facsimile transmission shall be effective as delivery of a manually executed counterpart of this Credit Agreement. Severability In the event any one or more of the provisions contained in this Credit Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. Right of Setoff If an Event of Default shall have occurred and be continuing, each of the Lenders and their respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to setoff and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by it to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Credit Agreement and the other Loan Documents held by it, irrespective of whether or not it shall have made any demand therefor and although such obligations may be unmatured. The rights of each of the Lenders and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that it may have. Each Lender agrees (i) to notify the Administrative Agent in writing within three business days after each such set-off and application made by such Lender and (ii) to comply with Section 2.11(c) of this Agreement. Governing Law; Jurisdiction; Consent to Service of Process This Credit Agreement shall be governed by, and construed in accordance with, the laws of the State of New York. The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in New York City, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Credit Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that, to the extent permitted by applicable law, all claims in respect of any such action or proceeding may be heard and determined in such New York State court or, to the extent permitted by applicable law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Credit Agreement shall affect any right that the Administrative Agent or any other Credit Party may otherwise have to bring any action or proceeding relating to this Credit Agreement or the other Loan Documents against the Borrower, or any of its property, in the courts of any jurisdiction. The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Credit Agreement or the other Loan Documents in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. The Borrower irrevocably consents to service of process in the manner provided for notices in Section 10.1. Nothing in this Credit Agreement will affect the right of any party to this Credit Agreement to serve process in any other manner permitted by law. WAIVER OF JURY TRIAL EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. Headings Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Credit Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Credit Agreement. Interest Rate Limitation Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or LC Disbursement, together with all fees, charges and other amounts that are treated as interest thereon under applicable law (collectively the "charges"), shall exceed the maximum lawful rate (the "maximum rate") that may be contracted for, charged, taken, received or reserved by the Lender holding an interest in such Loan or LC Disbursement in accordance with applicable law, the rate of interest payable in respect of such Loan or LC Disbursement hereunder, together with all of the charges payable in respect thereof, shall be limited to the maximum rate and, to the extent lawful, the interest and the charges that would have been payable in respect of such Loan or LC Disbursement but were not payable as a result of the operation of this Section shall be cumulated, and the interest and the charges payable to such Lender in respect of other Loans or LC Disbursements or periods shall be increased (but not above the maximum rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender. Treatment of Certain Information Each Credit Party agrees to use reasonable precautions to keep confidential, in accordance with their customary procedures for handling confidential information of the same nature, all non-public information supplied by the Borrower or any Subsidiary pursuant to this Credit Agreement which (a) is clearly identified by such Person as being confidential at the time the same is delivered to such Credit Party, or (b) constitutes any financial statement, financial projections or forecasts, budget, compliance certificate, audit report, management letter or accountants' certification delivered hereunder, provided, however, that nothing herein shall limit the disclosure of any such information (i) to such of their respective Related Parties as need to know such information, (ii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, or requested by any bank regulatory authority, (iii) on a confidential basis, to prospective lenders (i.e. assignees and/or Participants) or their counsel, (iv) to auditors or accountants, and any analogous counterpart thereof, (v) to any other Credit Party, (vi) in connection with any litigation to which any one or more of the Credit Parties is a party, (vii) to the extent such information (A) becomes publicly available other than as a result of a breach of this Credit Agreement, (B) becomes available to any of the Credit Parties on a non-confidential basis from a source other than the Borrower or any Subsidiary, or (C) was available to the Credit Parties on a non-confidential basis prior to its disclosure to any of them by the Borrower or any Subsidiary; and (viii) to the extent the Borrower shall have consented to such disclosure in writing. IN WITNESS WHEREOF, the parties hereto have caused this Credit Agreement to be duly executed by their respective authorized officers as of the day and year first above written. THE BISYS GROUP, INC. By: /s/ James L. Fox ----------------------------------- Name: James L. Fox Title: Executive Vice President and Chief Officer THE BANK OF NEW YORK, individually, as Issuing Bank, as Swingline Lender and as Administrative Agent By: /s/ Steven L. Wexeler ----------------------------------- Name: Steven L. Wexeler Title:Vice President FLEET NATIONAL BANK, individually and as Documentation Agent By: /s/ Michael J. Lessing ----------------------------------- Name: Michael J. Lessig Title: Assistant Vice President JPMORGAN CHASE BANK, individually and as Documentation Agent By: /s/ Dolores A. Walsh ----------------------------------- Name: Dolores A. Walsh Title: Vice President SUNTRUST BANK, individually and as Documentation Agent By: /s/ David W. Penter ----------------------------------- Name: David W. Penter Title: Director WACHOVIA BANK, NATIONAL ASSOCIATION, individually and as Documentation Agent By: /s/ Daniel Evans ----------------------------------- Name: Daniel Evans Title: Managing Director KEYBANK NATIONAL ASSOCIATION By: /s/ Jeff Kalinowski ----------------------------------- Name: Jeff Kalinowski Title: Vice President PNC BANK, NATIONAL ASSOCIATION By: /s/ Michael Richards ----------------------------------- Name: Michael Richards Title: Vice President THE BANK OF NOVA SCOTIA By: /s/ John W. Campbell ----------------------------------- Name: John W. Campbell Title: Industry Head SCOTIABANC INC. By: /s/ William E. Zarrett ----------------------------------- Name: William E. Zarrett Title: Managing Director US BANK, N.A. By: /s/ Patrick H. McGraw ----------------------------------- Name: Patrick H. McGraw Title: Assistant Vice President ALLIED IRISH BANKS, PLC By: /s/ Anthony O'Reilly ----------------------------------- Name: Anthony O'Reilly Title: Vice President By: /s/ Aidan Lanigan ----------------------------------- Name: Aidan Lanigan Title: Assistant Vice President FIFTH THIRD BANK (CENTRAL OHIO) By: /s/ Christopher D. Jones ----------------------------------- Name: Christopher D. Jones Title: Vice President UFJ BANK LIMITED By: /s/ Stephen C. Small ----------------------------------- Name: Stephen C. Small Title: Senior Vice President & Area Manager SUMITOMO MITSUI BANKING CORPORATION By: /s/ Robert H. Riley III ----------------------------------- Name: Robert H. Riley III Title: Senior Vice President WELLS FARGO BANK, NATIONAL ASSOCIATION By: /s/ Jason Paulnock ----------------------------------- Name: Jason Paulnock Title: Vice President By: /s/ Beth McGinnis ----------------------------------- Name: Beth McGinnis Title: Senior Vice President