1 EXHIBIT 10.6 CREDIT AGREEMENT THIS CREDIT AGREEMENT is dated as of August 29, 1997, among NETCOM SYSTEMS, INC., a California corporation (the "Borrower"), the Lenders from time to time party hereto, BANKBOSTON, N.A., as documentation agent, and NATIONSBANK OF TEXAS, N.A., a national banking association, as administrative agent for the Lenders. BACKGROUND The Lenders have been requested to provide the Borrower funds to (a) consummate the Netcom Recapitalization (as hereinafter defined), (b) refinance a portion of the existing debt of the Borrower (including trade payables), (c) pay certain fees and expenses related to the Netcom Recapitalization, (d) finance acquisitions and to finance the repurchase of the Netcom Preferred Stock, in each case to the extent permitted hereunder, and (e) finance the ongoing working capital and general corporate requirements of the Borrower and its Subsidiaries (as hereinafter defined). The Lenders have agreed to provide such financing, subject to the terms and conditions set forth below. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration hereby acknowledged, the parties hereto agree as follows: ARTICLE 1 Definitions Section 1.1 Defined Terms. For purposes of this Agreement: "Acquisition" means any transaction pursuant to which the Borrower or any of its Subsidiaries, (a) whether by means of a capital contribution or purchase or other acquisition of stock or other securities or other equity participation or interest, (i) acquires more than 50% of the equity interest in any Person pursuant to a solicitation by the Borrower or such Subsidiary of tenders of equity securities of such Person, or through one or more negotiated block, market, private or other transactions, or a combination of any of the foregoing, or (ii) makes any corporation a Subsidiary of the Borrower or such Subsidiary, or causes any corporation, other than a Subsidiary of the Borrower or such Subsidiary, to be merged into the Borrower or such Subsidiary (or agrees to be merged into any other corporation other than a wholly-owned Subsidiary (excluding directors' qualifying shares) of the Borrower or such Subsidiary), or (b) purchases all or substantially all of the business or assets of any Person or of any operating division of any Person. "Acquisition Consideration" means the consideration given by the Borrower or any of its Restricted Subsidiaries for an Acquisition, including but not limited to the fair market value of any 2 cash, property, stock or services given, the amount of any Indebtedness assumed or incurred by the Borrower or any Restricted Subsidiary of the Borrower in connection with such Acquisition and any and all obligations of the Borrower or any Restricted Subsidiary of the Borrower under or in connection with any incentive, earn-out or other similar arrangements incurred by it in connection with such Acquisition. "Administrative Agent" means NationsBank of Texas, N.A., a national banking association, as administrative agent for Lenders, or such successor administrative agent appointed pursuant to Section 10.1(b) hereof. "Advance" means any amount advanced by the Lenders to the Borrower pursuant to Article 2 hereof on the occasion of any borrowing. "Affiliate" means, as applied to any Person, any other Person that, directly or indirectly, through one or more Persons, Controls or is Controlled By or Under Common Control with, such Person. "Agreement" means this Credit Agreement, as amended, modified, supplemented or restated from time to time. "Agreement Date" means the date of this Agreement. "Applicable Base Rate Margin" means 0.00%. "Applicable Environmental Laws" means applicable laws pertaining to the protection of human health or the protection of the environment, including without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (as amended from time to time, "CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act amendments of 1980, and the Hazardous and Solid Waste Amendments of 1984 (as amended from time to time, "RCRA"). "Applicable Law" means (a) in respect of any Person, all provisions of constitutions, statutes, rules, regulations and final orders of governmental bodies or regulatory agencies applicable to such Person and its properties, including, without limiting the foregoing, all orders and decrees of all Tribunals in proceedings or actions to which the Person in question is a party, and (b) in respect of contracts relating to interest or finance charges that are made or performed in the State of Texas, "Applicable Law" shall mean the laws of the United States of America, including without limitation 12 USC Sections 85 and 86, as amended from time to time, and any other statute of the United States of America now or at any time hereafter prescribing the maximum rates of interest on loans and extensions of credit, and the laws of the State of Texas. 2 3 "Applicable LIBOR Rate Margin" means the following per annum percentages, applicable in the following situations: Applicability Percentage - ------------- ---------- (a) Initial Pricing Period 1.25% (b) Subsequent Pricing Period (1) The Leverage Ratio is greater than or equal to 1.50 to 1 1.50% (2) The Leverage Ratio is less than 1.50 to 1 but greater 1.25% than or equal to 1.00 to 1 (3) The Leverage Ratio is less than 1.00 0.875% During the Subsequent Pricing Period, the Applicable LIBOR Rate Margin payable by the Borrower on the LIBOR Advances outstanding hereunder shall be subject to reduction or increase, as applicable and as set forth in the table above, on a quarterly basis according to the Leverage Ratio, determined as of the end of the most recent fiscal quarter of the Borrower; provided, that each adjustment in the LIBOR Basis as a result of a change in the Applicable LIBOR Rate Margin shall be effective on the Business Day of receipt by the Administrative Agent of the financial statements required to be delivered pursuant to Section 6.2 or 6.3 hereof, as applicable, for each such fiscal quarter, and the corresponding Compliance Certificate required pursuant to Section 6.4 hereof. If such financial statements and Compliance Certificate are not received by the Administrative Agent by the date required, the Applicable LIBOR Rate Margin shall be 1.25% until such time as such financial statements and Compliance Certificate are received. "Assignees" means any assignee of a Lender pursuant to an Assignment Agreement and shall have the meaning ascribed thereto in Section 11.6 hereof. "Assignment Agreement" has the meaning specified in Section 11.6 hereof. "Authorized Signatory" means any Senior Officer and such other senior personnel of the Borrower as may be duly authorized and designated in writing by the Borrower to execute documents, agreements and instruments on behalf of the Borrower, and to request Advances and Letters of Credit hereunder. "Base Cash Flow" means, for any date of calculation, calculated for the Borrower and its Restricted Subsidiaries on a consolidated basis, an amount equal to the sum of (a) EBITDA, minus (b) Capital Expenditures, minus (c) cash taxes. "Base Rate Advance" means any Advance bearing interest at the Base Rate Basis. 3 4 "Base Rate Basis" means, for any day, a per annum interest rate equal to the higher of (a) the sum of (i) 0.50% plus (ii) the Federal Funds Rate on such day plus (iii) the Applicable Base Rate Margin or (b) the sum of (i) the Prime Rate on such day plus (ii) the Applicable Base Rate Margin. The Base Rate Basis shall be adjusted automatically without notice as of the opening of business on the effective date of each change in the Prime Rate or Federal Funds Rate, as applicable, to account for such change. "Basle Accord" means the proposals for risk-based capital framework described by the Basle Committee on Banking Regulations and Supervisory Practices in its paper entitled "International Convergence of Capital Management and Capital Standards" dated July 1988, as amended, modified, and supplemented and in effect from time to time or any replacement thereof. "Business Day" means a day on which commercial banks are open (a) for the transaction of business in Dallas, Texas and San Francisco, California, and (b) with respect to any LIBOR Advance, for the transaction of international business (including dealings in U.S. Dollar deposits) in London, England. "Capital Expenditures" means, for any period, expenditures made by the Borrower and its Restricted Subsidiaries to acquire or construct fixed assets, plant and equipment (including renewals, improvements and replacements during such period and the aggregate amount of items leased or acquired under Capitalized Lease Obligations at the cost of the item) computed in accordance with GAAP. "Capitalized Lease Obligations" means that portion of any obligation of the Borrower or any Restricted Subsidiary of the Borrower as lessee under a lease which at the time would be required to be capitalized on a balance sheet of the Borrower or such Restricted Subsidiary prepared in accordance with GAAP. "Change of Control" means the occurrence of any of the following events after the Agreement Date: (a) any Person or any Persons acting together which would constitute a "group" (a "Group") for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any successor provision thereto, other than the holders of the Netcom Convertible Preferred Stock as of the close of business on the Agreement Date, together with any Affiliates or Related Persons thereof, shall beneficially own (as defined in Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act or any successor provision thereto) more than 50% of the aggregate Voting Power of the Borrower; or (b) any "Change of Control", "Change in Ownership", "Change in Control" or similar event or circumstance, however designated, under any agreement or document governing any Institutional Debt, the Netcom Convertible Preferred Stock or the Netcom Redeemable Preferred Stock. "Code" means the Internal Revenue Code of 1986, as amended. 4 5 "Commitments" means, collectively, the Revolving Credit Commitment and the Term Loan Commitment, as reduced from time to time in the case of the Revolving Credit Commitment pursuant to Section 2.6 hereof. "Compliance Certificate" means a certificate, signed by an Authorized Signatory, in substantially the form of Exhibit C, appropriately completed. "Control" or "Controlled By" or "Under Common Control" means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of voting securities, by contract or otherwise); provided, however, that in any event any Person which beneficially owns, directly or indirectly, 20% or more (in number of votes) of the securities having ordinary voting power for the election of directors of a corporation shall be conclusively presumed to control such corporation. "Controlled Group" means as of the applicable date, as to any Person not an individual, all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) which are under common control with such Person and which, together with such Person, are treated as a single employer under Section 414(b), (c), (m) or (o) of the Code; provided, however, that the Subsidiaries of the Borrower shall be deemed to be members of the Borrower's Controlled Group; provided, further, however, that no Person that is Controlled By any of the owners of the Netcom Preferred Stock shall be deemed to be members of the Borrower's Controlled Group. "Debtor Relief Laws" means any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar debtor relief Laws affecting the rights of creditors generally from time to time in effect and applicable to the relevant case. "Default" means an Event of Default and/or any of the events specified in Section 8.1, regardless of whether there shall have occurred any passage of time or giving of notice that would be necessary in order to constitute such event an Event of Default. "Default Rate" means a simple per annum interest rate equal to (a) with respect to Base Rate Advances, the lesser of (i) the Highest Lawful Rate or (ii) the Base Rate Basis then in effect plus 2.00% or (b) with respect to LIBOR Advances, the lesser of (i) the Highest Lawful Rate or (ii) the LIBOR Basis then in effect plus 2.00%. "Determining Lenders" means, on any date of determination, any combination of Lenders having 51% of the aggregate principal amount of Advances then outstanding; provided, however, that if there are no Advances outstanding hereunder, "Determining Lenders" means any combination of Lenders whose Specified Percentages aggregate 51%. "Dividend" means, as to any Person, (a) any declaration or payment of any dividend (other than a stock dividend) on, or the making of any distribution on account of, any Equity Interests of 5 6 such Person and (b) any purchase, redemption, or other acquisition or retirement for value of any Equity Interests of such Person. "Documentation Agent" means BankBoston, N.A. "Dollar" or "$" means the lawful currency of the United States of America. "Domestic Cash and Cash Equivalents" means with respect to the Borrower and each Domestic Subsidiary of the Borrower (a) cash, (b) securities issued or directly and fully guaranteed or insured by the United States Government, or any agency or instrumentality thereof, or any state or municipality having maturities of not more than one year from the date of acquisition, (c) certificates of deposit and time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any Lender or with any domestic commercial bank having a combined capital and surplus in excess of $100,000,000, (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) entered into with any financial institution meeting the qualifications specified in clause (c) above, (e) commercial paper issued by any Lender or the parent corporation of any Lender, and commercial paper rated A-1 or the equivalent thereof by Standard & Poor's Ratings Group, a Division of The McGraw-Hill Companies, Inc., a New York corporation, or P-1 or the equivalent thereof by Moody's Investors Service, Inc., and in each case maturing within 270 days after the date of acquisition, and (f) a readily redeemable "money market fund" or "money market mutual fund" advised by a bank described in clause (c) hereof, or an investment advisor registered under Section 203 of the Investment Advisors Act of 1940, that has and maintains an investment policy limiting its investments primarily to instruments of the types described in clauses (a) through (e) hereof and having on the date of such Investment total assets of at least $100,000,000.00. "Domestic Subsidiary" means any Subsidiary of the Borrower other than a Foreign Subsidiary. "EBIT" means, for any period, determined in accordance with GAAP on a consolidated basis for the Borrower and its Restricted Subsidiaries, the sum of (a) Pretax Net Income (excluding therefrom, to the extent included in determining Pretax Net Income, any items of extraordinary gain, including net gains on the sale of assets other than asset sales in the ordinary course of business, and adding thereto, to the extent included in determining Pretax Net Income, any items of extraordinary loss, including net losses on the sale of assets other than asset sales in the ordinary course of business), plus (b) interest expense (including, without limitation, all commissions, discounts, fees payable hereunder and other amounts payable in connection with any Indebtedness permitted hereunder and interest expense pursuant to Capitalized Lease Obligations). "EBITDA" means, for any period, determined in accordance with GAAP on a consolidated basis for the Borrower and its Restricted Subsidiaries, the sum of (a) EBIT, plus (b) depreciation, amortization and other non-cash charges and expenses (to the extent included in determining EBIT), 6 7 (c) accrued but unpaid dividends on the Netcom Convertible Preferred Stock and the Netcom Redeemable Preferred Stock (to the extent included in determining EBIT), plus (d) fees and expenses in connection herewith and in connection with the Netcom Recapitalization, plus (e) fees and expenses in connection with Acquisitions permitted hereunder, plus (f) write-up of assets as permitted by purchase accounting (APB Nos. 16 and 17) in connection with the acquisition of assets permitted hereunder. "Eligible Assignee" means (a) any Lender; (b) a commercial bank organized under the laws of the United States, or any state thereof, and having total assets in excess of $1,000,000,000; (c) a savings and loan association or savings bank organized under the laws of the United States, or any state thereof, having total assets in excess of $1,000,000,000, and not in receivership or conservatorship; and (d) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development, or a political subdivision of any such country, and having total assets in excess of $1,000,000,000, provided that such bank is acting through a branch or agency located in the country in which it is organized or another country which is described in this clause; provided that, no Affiliate of the Borrower shall qualify as an Eligible Assignee and provided, further, that after the occurrence and during the continuance of any Event of Default, the term "Eligible Assignee" shall also include a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business and having a combined capital and surplus of at least $100,000,000 and the central bank of any country which is a member of the Organization for Economic Cooperation and Development. "Equity Interest" means, as to any Person, the equity interests in such Person, including, without limitation, the shares of each class of capital stock in any Person that is a corporation, and each class of partnership interest (including, without limitation, general, limited and preference units) in any Person that is a partnership, and each class of member interest in any Person that is a limited liability company. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any regulation promulgated thereunder. "ERISA Event" means, with respect to the Borrower and its Subsidiaries, (a) a Reportable Event (other than a Reportable Event not subject to the provision for 30-day notice to the PBGC pursuant to regulations issued under Section 4043 of ERISA), (b) the withdrawal of any such Person or any member of its Controlled Group from a Plan subject to Title IV of ERISA during a plan year in which it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate under Section 4041(c) of ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, (e) the failure to make required contributions which could result in the imposition of a lien under Section 412 of the Code or Section 302 of ERISA, or (f) any other event or condition which might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan or the 7 8 imposition of any liability under Title IV of ERISA other than PBGC premiums due but not delinquent under Section 4007 of ERISA. "Event of Default" means any of the events specified in Section 8.1, provided that any requirement for notice or lapse of time has been satisfied. "Excluded Matters" has the meaning specified in Section 5.9(a) hereof. "Federal Funds Rate" means, for any day, the rate per annum 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 Dallas on the Business Day next succeeding such day, provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average of the quotations for the day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it. "Fee Letters" has the meaning specified in Section 2.4(b) hereof. "Fixed Charges" means, for any date of calculation, calculated for the Borrower and its Restricted Subsidiaries on a consolidated basis, the sum of, without duplication, (a) scheduled principal payments in respect of Indebtedness, plus (b) cash interest expense (including cash interest expense pursuant to Capitalized Lease Obligations), net of interest income, minus (c) amortization of discount and debt issuance costs and fees and expenses payable or amortized in connection with the Netcom Recapitalization, to the extent included in cash interest expense. "Fixed Charge Coverage Ratio" means the ratio of Base Cash Flow to Fixed Charges for the four consecutive fiscal quarters ending on the date of calculation. "Foreign Cash and Cash Equivalents" means with respect to each Foreign Subsidiary of the Borrower (a) cash, (b) securities issued or directly and fully guaranteed or insured by the government or any agency or instrumentality thereof, or any state or municipality of the jurisdiction of organization of such Foreign Subsidiary having maturities of not more than one year from the date of acquisition, (c) certificates of deposit and time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any foreign commercial bank having a combined capital and surplus in excess of $100,000,000, (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) entered into with any financial institution meeting the qualifications specified in clause (c) above, and (e) a readily redeemable "money market fund" or "money market mutual fund" advised by a bank described in clause (c) hereof. 8 9 "Foreign Restricted Subsidiary" means any Foreign Subsidiary (i) designated by the Borrower as a Foreign Restricted Subsidiary in writing to the Administrative Agent, and (ii) 65% of whose Equity Interest shall be pledged to the Administrative Agent to secure the Obligations, pursuant to documentation reasonably acceptable to the Administrative Agent, provided the Lenders shall have received such board resolutions, officers' certificates, corporate and other documents and opinions of counsel as the Administrative Agent shall reasonably request in connection with such pledge. "Foreign Subsidiary" means any Subsidiary of the Borrower which is not organized under the laws of any state of the United States of America or the District of Columbia. "GAAP" means (i) as applied to periods of time prior to and including April 30, 1998, accounting principles previously utilized by the Borrower as reflected in the quarterly financial statements prepared by the Borrower prior to the Agreement Date and (ii) as applied to periods of time after April 30, 1998, generally accepted accounting principles applied on a consistent basis, set forth in the Opinions of the Accounting Principles Board of the American Institute of Certified Public Accountants, or their successors which are applicable in the circumstances as of the date in question. The requirement that such principles be applied on a consistent basis shall mean that the accounting principles applied in a current period are comparable in all material respects to those applied in a preceding period. "Guarantor" means each direct and indirect Restricted Subsidiary of the Borrower, other than any Foreign Restricted Subsidiary. "Guaranty" or "Guaranteed", means (a) as applied to an obligation of another Person, (i) a guaranty, direct or indirect, in any manner, of any part or all of such obligation, and (ii) an agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of nonperformance) of any part or all of such obligation, including, without limiting the foregoing, any reimbursement obligations with respect to amounts which may be drawn by beneficiaries of outstanding letters of credit and (b) an agreement, direct or indirect, contingent or otherwise, to maintain the net worth, working capital, earnings or other financial performance of another Person; provided, however, Guaranty does not mean (y) the endorsement of instruments for collection or deposit in the ordinary course of business and (z) customary indemnities given in connection with asset sales in the ordinary course of business. "Highest Lawful Rate" means at the particular time in question the maximum rate of interest which, under Applicable Law, the Lenders are then permitted to charge on the Obligations. If the maximum rate of interest which, under Applicable Law, the Lenders are permitted to charge on the Obligations shall change after the date hereof, the Highest Lawful Rate shall be automatically increased or decreased, as the case may be, from time to time as of the effective time of each change in the Highest Lawful Rate without notice to the Borrower. 9 10 "Indebtedness" means, with respect to any Person, without duplication, (a) all obligations for borrowed money, (b) all obligations evidenced by bonds, debentures, notes or similar instruments, (c) all obligations under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (d) all obligations issued or assumed as the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (e) all obligations secured by any Lien on any property or asset owned by such Person, whether or not the obligation secured thereby shall have been assumed, valued, in the case of Indebtedness not assumed, at the lesser of the amount of such Indebtedness or the fair market value of all property securing such Indebtedness, (f) to the extent not otherwise included, all Capitalized Lease Obligations of such Person, all obligations in respect of letters of credit, bankers' acceptances and similar instruments, and all net obligations under Interest Hedge Agreements, (g) the principal portion of all obligations of such Person under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product where such transaction is considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease pursuant to GAAP, (h) all preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a fixed date, and (i) any Guaranty of such Person of any obligation of another Person constituting obligations of a type set forth above. "Indemnified Matters" has the meaning specified in Section 5.9(a) hereof. "Indemnitees" has the meaning specified in Section 5.9(a) hereof. "Initial Pricing Period" means the period from and including the Agreement Date to and including the Rate Adjustment Date. "Institutional Debt" means unsecured Indebtedness for borrowed money which may be raised by the Borrower after the Agreement Date in the private placement or public debt markets pursuant to terms satisfactory to the Determining Lenders, with only such changes and amendments as are not prohibited by Section 7.17 hereof, and which shall include Subordinated Debt. "Interest Hedge Agreements" means any and all agreements, devices or arrangements designed to protect at least one of the parties thereto from the fluctuations of interest rates, exchange rates or forward rates applicable to such party's assets, liabilities or exchange transactions, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap, swap or collar protection agreements, and forward rate currency or interest rate options, as the same may be amended or modified and in effect from time to time, and any and all cancellations, buy backs, reversals, terminations or assignments of any of the foregoing. "Interest Period" means the period beginning on the day any LIBOR Advance is made and ending one, two, three or six months thereafter (as the Borrower shall select); provided, however, that all of the foregoing provisions are subject to the following: 10 11 (i) if any Interest Period would otherwise end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day, unless, with respect to a LIBOR Advance, the result of such extension would be to extend such Interest Period into another calendar month, in which event such Interest Period shall end on the immediately preceding Business Day; (ii) any Interest Period with respect to a LIBOR Advance that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of a calendar month; (iii) the Borrower may not select any Interest Period which ends after the date of a scheduled principal payment on the Advances unless, after giving effect to such selection, the aggregate unpaid principal amount of the LIBOR Advances for which Interest Periods end after such scheduled principal payment shall be equal to or less than the principal amount to which the Advances are required to be reduced after such scheduled principal payment is made; (iv) the Borrower may not select any Interest Period in respect of LIBOR Advances having an aggregate amount less than $500,000; and (v) there shall be outstanding at any one time no more than five Interest Periods in the aggregate. "Investment" means any direct or indirect purchase or other acquisition of, or beneficial interest in, capital stock or other securities of any other Person which is not an Acquisition, or any direct or indirect loan, advance (other than loans or advances to employees for moving and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution to, or investment in any other Person, including without limitation the purchase of accounts receivable of any other Person that are not current assets or do not arise in the ordinary course of business. "Issuing Bank" means NationsBank of Texas, N.A., a national banking association, in its capacity as issuer of the Letters of Credit. "Law" means any statute, law, ordinance, regulation, rule, order, writ, injunction, or decree of any Tribunal. "Lender" means each financial institution shown on the signature pages hereof so long as such financial institution maintains a portion of the Commitments or is owed any part of the Obligations (including the Administrative Agent in its individual capacity), and each Assignee that hereafter becomes a party hereto pursuant to Section 11.6 hereof, subject to the limitations set forth therein. 11 12 "L/C Related Documents" has the meaning specified in Section 2.15(e) hereof. "Letter of Credit" has the meaning specified in Section 2.15(a) hereof. "Letter of Credit Agreement" has the meaning specified in Section 2.15(b) hereof. "Letter of Credit Facility" has the meaning specified in Section 2.15(a) hereof. "Leverage Ratio" means, for any date of calculation, the ratio of Total Debt as of the date of determination to EBITDA calculated for the four consecutive fiscal quarters immediately preceding the date of calculation. For purpose of calculation of the Leverage Ratio only, with respect to assets not owned at all times during the four fiscal quarters immediately preceding the date of calculation of EBITDA, there shall be included in EBITDA the proforma EBITDA of any assets acquired during any such four fiscal quarters for the twelve months preceding the date of calculation. "LIBOR Advance" means an Advance which the Borrower requests to be made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance with the provisions of Section 2.2 hereof. "LIBOR Basis" means a simple per annum interest rate equal to the lesser of (a) the Highest Lawful Rate, or (b) the sum of the LIBOR Rate plus the Applicable LIBOR Rate Margin. The LIBOR Basis shall, with respect to LIBOR Advances subject to reserve or deposit requirements, be subject to premiums for such reserve or deposit requirements assessed by each Lender to the extent incurred by such Lender, which are payable by the Borrower directly to each Lender. Once determined, the LIBOR Basis shall remain unchanged during the applicable Interest Period. "LIBOR Lending Office" means, with respect to a Lender, the office designated as its LIBOR Lending Office on Schedule 1 attached hereto, and, to the extent that same does not result in increased costs to the Borrower, such other office of the Lender or any of its Affiliates hereafter designated by notice to the Borrower and the Administrative Agent. "LIBOR Rate" means, for any LIBOR Advance for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period. If for any reason such rate is not available, the term "LIBOR Rate" shall mean, for any LIBOR Advance for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London interbank offered rate for deposits in Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Period; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, the applicable rate shall be the arithmetic mean of all such rates. 12 13 "Lien" means, with respect to any property, any mortgage, lien, pledge, collateral assignment, hypothecation, charge, security interest, title retention agreement, levy, execution, seizure, attachment, garnishment or other similar encumbrance of any kind in respect of such property, whether or not choate, vested or perfected. "Litigation" means any proceeding, claim, lawsuit, arbitration, and/or investigation by or before any Tribunal, including, without limitation, proceedings, claims, lawsuits, and/or investigations under or pursuant to any environmental, occupational, safety and health, antitrust, unfair competition, securities, Tax or other Law, or under or pursuant to any contract, agreement or other instrument. "Loan Documents" means this Agreement, the Notes, the L/C Related Documents, the Fee Letters, any Interest Hedge Agreements entered into with any Lender, and any other document or agreement executed or delivered from time to time by the Borrower or any Restricted Subsidiary of the Borrower in connection herewith. "Material Adverse Effect" means any act or circumstance or event that (a) causes an Event of Default, (b) would reasonably be expected to be material and adverse to the business, financial condition or results of operations of the Borrower and its Restricted Subsidiaries taken as a whole, or (c) in any manner whatsoever does or would reasonably be expected to materially and adversely affect (i) the validity or enforceability of the Loan Documents in any material respect, (ii) the ability of the Borrower and its Restricted Subsidiaries taken as a whole to perform their respective Obligations under the Loan Documents, or (iii) the rights and remedies of the Lenders or the Administrative Agent under the Loan Documents in any material respect. "Multiemployer Plan" means, as to any Person, at any time, a "multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to which such Person or any member of its Controlled Group is making, or is obligated to make contributions or has made, or been obligated to make, contributions. "NationsBank" means NationsBank of Texas, N.A., a national banking association, in its capacity as a Lender. "Necessary Authorization" means any right, franchise, license, permit, consent, approval or authorization from, or any filing or registration with, any Tribunal or any Person necessary to enable the Borrower or any Restricted Subsidiary of the Borrower to maintain and operate its business and properties. "Net Cash Proceeds" means, with respect to any sale, lease, transfer or other disposition of any asset by any Person, the amount of cash received by such Person in connection with such transaction (including cash proceeds of any property received in consideration of any such sale, lease, transfer or other disposition) after deducting therefrom the aggregate, without duplication, of the following amounts to the extent properly attributable to such transaction or to the asset that is the 13 14 subject thereof: (i) reasonable brokerage commissions, legal fees, finder's fees, financial advisory fees, accounting fees, underwriting fees, investment banking fees and other similar commissions and fees, and expenses, in each case, to the extent paid or payable by such Person; (ii) filing, recording or registration fees or charges or similar fees or charges paid by such Person; (iii) taxes paid or payable by such Person or any shareholder, partner or member of such Person to governmental taxing authorities as a result of such sale or other disposition; (iv) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any Indebtedness that is secured by a Lien on the asset in question and that is required to be repaid under the terms thereof as a result of such asset sale; and (v) reasonable reserves established in good faith by the Borrower for escrows, purchase price adjustments and indemnification obligations (provided, however, that upon satisfaction or elimination of the applicable contingency(ies) for which any such reserve was established any funds remaining in such reserve shall constitute Net Cash Proceeds and shall immediately be distributed in accordance with the terms hereof. "Netcom Articles of Incorporation" means the Second Amended and Restated Articles of Incorporation, dated as of August 22, 1997. "Netcom Convertible Preferred Stock" means that certain convertible preferred stock of the Borrower issued pursuant to the Netcom Recapitalization Agreement. "Netcom Escrow Agreement" means that certain Netcom Systems, Inc. Escrow Agreement, dated as of August 29, 1997, among the Borrower, the purchaser representatives named therein, the seller representative named therein and the escrow agent named therein. "Netcom Preferred Stock" means, collectively, the Netcom Convertible Preferred Stock and the Netcom Redeemable Preferred Stock. "Netcom Recapitalization" means the purchase by the Borrower of at least 10,215,644 shares of its shares of its common Equity Interests and the issuance by the Borrower of the Netcom Convertible Preferred Stock and the Netcom Redeemable Preferred Stock pursuant to the Netcom Recapitalization Agreement. "Netcom Recapitalization Agreement" means that certain Recapitalization Agreement, dated as of August 29, 1997, by and among the Borrower, the purchasers named therein and the sellers named therein. "Netcom Recapitalization Documents" means, collectively, the Netcom Recapitalization Agreement, the Netcom Articles of Incorporation, the Netcom Escrow Agreement, the Netcom Registration Agreement and the Netcom Shareholders' Agreement. "Netcom Redeemable Preferred Stock" means that certain redeemable preferred stock of the Borrower issued pursuant to the Netcom Recapitalization Agreement. 14 15 "Netcom Registration Agreement" means that certain Netcom Systems, Inc. Registration Agreement, dated as of August 29, 1997, among the Borrower, the investors named therein and the shareholders of the Borrower named therein. "Netcom Shareholders' Agreement" means that certain Netcom Systems, Inc. Shareholders Agreement, dated as of August 29, 1997, among the Borrower, the investors named therein and the existing shareholders of the Borrower named therein. "Net Income" means net earnings (or deficit) after taxes of the Borrower and its Subsidiaries, on a consolidated basis, determined in accordance with GAAP. "Notes" means, collectively, the Revolving Credit Notes and the Term Loan Notes. "Notice of Borrowing" has the meaning specified in Section 2.2(a) hereof. "Notice of Issuance" has the meaning specified in Section 2.15(b) hereof. "Obligations" means (a) all obligations of any nature (whether matured or unmatured, fixed or contingent, including the Reimbursement Obligations) of the Borrower or any other Obligor to any Lender or the Administrative Agent under any of the Loan Documents as they may be amended from time to time, and (b) all obligations of the Borrower or any other Obligor for losses, damages, expenses or any other liabilities of any kind that any Lender may suffer by reason of a breach by the Borrower or any other Obligor of any obligation, covenant or undertaking with respect to any Loan Document payable by the Borrower or any other Obligor under any Loan Document. "Obligor" means any of the Borrower and the Guarantors. "Operating Lease" means any operating lease, as defined in the Financial Accounting Standard Board Statement of Financial Accounting Standards No. 13, dated November, 1976 or otherwise in accordance with GAAP, except to the extent included in the definition of "Indebtedness". "Participant" has the meaning specified in Section 11.6(c) hereof. "Participation" has the meaning specified in Section 11.6(c) hereof. "Payment Date" means the last day of the Interest Period for any LIBOR Advance. "PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA. "Permitted Distributions" means, collectively: 15 16 (a) redemptions of, or dividends with respect to, the Netcom Preferred Stock if, and to the extent that, (i) immediately prior to and after giving effect to each such dividend, redemption or dividend, the Leverage Ratio of the Borrower is not greater than 0.75 to 1.00, (ii) no Default or Event of Default would exist immediately prior to or after giving effect to such redemption or dividend, (iii) at least 5 Business Days prior to the date of declaration or payment (whichever is earlier) of any such redemption or dividend, the Administrative Agent shall have received a Compliance Certificate from the Borrower evidencing compliance with the requirements of clauses (i) and (ii) above, and (iv) contemporaneously with the making or payment of any such redemption or dividend, the Borrower shall have paid to the Lenders, in addition to any other payments and/or prepayments required hereunder, an amount equal to three times the amount of such redemption or dividend, for application to the Obligations in accordance with the provisions of Section 2.5(d) hereof; (b) Dividends or reductions of Indebtedness if, and to the extent that, (i) immediately prior to, or contemporaneously with, such Dividend or reduction of Indebtedness, the Borrower receives Net Cash Proceeds from the sale, or other disposition of Equity Interests in the Borrower (other than in connection with a Public Equity Offering) or capital contributions to the Borrower in an amount sufficient to make the Dividends and reductions of Indebtedness and the payments to the Lenders required hereby, (ii) no Default or Event of Default would exist immediately prior to or after giving effect to such redemption or dividend, (iii) at least 5 Business Days prior to the date of declaration or payment (whichever is earlier) of any such Dividend or reduction of Indebtedness, the Administrative Agent shall have received a certificate from the Borrower evidencing compliance with the requirements of clause (ii) above, and (iv) contemporaneously with the making or payment of any such Dividend or reduction of Indebtedness, the Borrower shall have paid to the Lenders the amounts required by Section 2.5(d). (c) payments or distributions in respect of Institutional Debt (other than Subordinated Debt) in connection with sales of assets of the Borrower or any Restricted Subsidiary as to which the Borrower is required to make a mandatory prepayment of the Obligations pursuant to Section 2.5(c) hereof if, and to the extent that, (i) such Institutional Debt contractually ranks, pari passu in right of payments with the Obligations and the payments or distributions contemplated to be made by the Borrower are contractually required to be made pursuant to the terms of the applicable documentation evidencing such Institutional Debt, (ii) no Default or Event of Default would exist immediately prior to or after giving effect to such payment or distribution, (iii) at least 5 Business Days prior to the date of declaration or payment (whichever is earlier) of any such payment or distribution, the Administrative Agent shall have received a certificate from the Borrower evidencing compliance with the requirements of clause (ii) above, and (iv) contemporaneously with the making or payment of any such payment or distribution, the Borrower shall have paid to the Lenders the amounts required by Section 2.5(c). (d) redemption of Equity Interests of the Borrower with respect to such Equity Interests owned by officers, directors and employees of the Borrower or any of its Subsidiaries if, and to the extent that, (i) such redemptions are made pursuant to the terms of any subscription 16 17 agreement or option or similar agreement entered into by the Borrower in the ordinary course of business, (ii) contemporaneously, with each such redemption, the Borrower shall have sold Equity Interests to other officers, directors or employees of the Borrower or any of its Subsidiaries, for cash, in amounts equal to, or greater than, the amount expended by the Borrower with respect to such redemption and (iii) no Default or Event of Default would exist immediately prior to or after giving effect to such redemption. "Permitted Liens" means, as applied to any Person: (a) Any Lien in favor of the Lenders to secure the Obligations hereunder; (b) Liens for taxes, assessments, governmental charges, levies or claims (i) not exceeding $50,000 or (ii) that are not yet delinquent or that are being diligently contested in good faith by appropriate proceedings in accordance with Section 5.6 hereof and for which adequate reserves shall have been set aside on such Person's books to the extent required by GAAP, but only so long as no foreclosure, restraint, sale or similar proceedings have been commenced with respect thereto; (c) Liens of carriers, landlords, warehousemen, mechanics, laborers and materialmen and other similar Liens incurred in the ordinary course of business (i) for sums not exceeding $50,000, (ii) sums not yet due or (iii) for sums being contested in good faith, if such reserve or appropriate provision, if any, as shall be required by GAAP shall have been made therefor; (d) Liens incurred or deposits made in the ordinary course of business in connection with worker's compensation, unemployment insurance or similar legislation; (e) Easements, right-of-way, restrictions and other similar encumbrances on the use of real property which do not interfere in any material respect with the ordinary conduct of the business of such Person; (f) Liens created to secure the purchase price of assets acquired, developed or constructed (or existing on property at the time such property is acquired, developed or constructed) by such Person or created to secure Indebtedness permitted by Section 7.1(c) or 7.1(h) hereof, which is incurred solely for the purpose of financing the acquisition of such assets and incurred at the time, or within 90 days after the date, of acquisition or which exists against such assets at the time of acquisition, development or construction thereof, so long as each such Lien shall at all times be confined solely to the asset or assets so acquired, developed or constructed (and proceeds and products thereof and accessions, replacements and substitutions therefor), and refinancings thereof so long as any such Lien remains solely on the asset or assets acquired (and the proceeds and products thereof and accessions, replacements and substitutions therefor) and the amount of Indebtedness related thereto is not increased; (g) Any Liens which are described on Schedule 2 hereto, and Liens resulting from the refinancing of the related Indebtedness, provided that the Indebtedness secured thereby shall not be 17 18 increased and the Liens shall not cover additional assets of the Borrower unless otherwise expressly permitted hereby; (h) Liens arising from filing Uniform Commercial Code financing statements for precautionary purposes relating solely to true leases of personal property permitted by this Agreement under which the Borrower or any of its Subsidiaries is a lessee or other precautionary or notice filings relating to obligations not constituting Indebtedness; (i) Any zoning or similar law or right reserved to or vested in any Tribunal to control or regulate the use of any real property; (j) Liens incurred or deposits made to secure the performance of bids, tenders, leases, trade contracts (other than for Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business; (k) Attachment or judgment Liens in existence for less than sixty days after the entry of the applicable judgment or with respect to which execution has been stayed or the payment of which is covered in full (subject to a customary deductible) by insurance maintained with responsible insurance companies; (l) Leases or subleases and licenses and sublicenses granted to others in the ordinary course of the Borrower's or any of its Subsidiaries' business, not interfering in any material respect with the business of the Borrower and its Restricted Subsidiaries taken as a whole, and any interest or title of a lessor, licensor or under any lease or license; (m) Liens securing reimbursement of obligations in respect of documentary letters of credit; provided, that such Liens attach only to the documents, the goods covered thereby and the proceeds thereof; (n) Liens in favor of customs and revenues authorities which secure payment of customs duties in connection with the importation of goods; (o) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto; (p) Liens of landlords arising in the ordinary course of business under lease contracts (only to the extent that same cover tangible personal property located on or at the real property covered by the applicable lease contract) or by operation of law; (q) Liens consisting of rights of set-off of a customary nature or bankers' liens on amounts on deposit, whether arising by contract or operation of law, incurred in the ordinary course of business; 18 19 (r) Liens encumbering customary initial deposits and margin deposits, and similar Liens and margin deposits, and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business, securing Indebtedness under any Interest Hedge Agreement; (s) Liens on Equity Interests of any Unrestricted Subsidiary; and (t) Any replacements or renewals of Liens (but no increases in the Indebtedness secured thereby) permitted by clauses (f), (g) and (h) hereof. "Person" means an individual, corporation, partnership, limited liability company, trust or unincorporated organization, or a government or any agency or political subdivision thereof. "Plan" means an employee benefit plan as defined in Section 3(3) of ERISA (including a Multiemployer Plan) pursuant to which any employees of the Borrower, its Subsidiaries or any member of their Controlled Group participate. "Pretax Net Income" means net profit (or loss) before taxes of the Borrower and its Subsidiaries, on a consolidated basis, determined in accordance with GAAP. "Prime Rate" means, at any time, the prime interest rate announced or published by the Reference Lender from time to time as its reference rate for the determination of interest rates for loans of varying maturities in United States dollars to United States residents of varying degrees of creditworthiness and being quoted at such time by the Reference Lender as its "prime rate;" it being understood that such rate may not be the lowest rate of interest charged by the Reference Lender. "Public Equity Offering" means an offering of common stock of the Borrower for cash pursuant to an effective registration statement under the Securities Act of 1933, as amended, at a time when, or as a consequence of which, the common stock of the Borrower is listed on a national securities exchange or quoted on the national market system of NASDAQ. "Quarterly Date" means the last day of each January, April, July and October, beginning October 31, 1997. "Rate Adjustment Date" means the date which is the date that the Lenders receive the financial statements for the fiscal quarter ending January 31, 1998, required to be delivered pursuant to Section 6.1 hereof. "Reference Lender" means NationsBank; provided that if NationsBank's Commitments shall terminate and it shall have no Advances and Letters of Credit outstanding hereunder, NationsBank shall cease to be the Reference Lender, and Administrative Agent (after consultation with Borrower) shall, with notice to Borrower and Lenders, designate another Lender as the Reference Lender. 19 20 "Reimbursement Obligations" means, in respect of any Letter of Credit as at any date of determination, the sum of (a) the maximum aggregate amount which is then available to be drawn under such Letter of Credit plus (b) the aggregate amount of all drawings under such Letter of Credit not theretofore reimbursed by the Borrower. "Related Person" of a Person means (a) any Affiliate of such Person, (b) any individual or entity who directly or indirectly holds 10% or more of any class of Equity Interests of such Person, (c) any relative of such Person by blood, marriage or adoption not more remote than first cousin and (d) any officer or director of such Person. No Lender hereunder shall be deemed to be a Related Person. "Release Date" means the date on which the Notes have been paid, all other Obligations due and owing have been paid and performed in full, and the Commitments have been terminated. "Reportable Event" has the meaning set forth in Section 4043(c) of ERISA. "Responsible Officer" means, of any Person, the President, chief operating officer, chief executive officer, chief financial officer, treasurer or any other executive officer of such Person. "Restricted Payments" means, collectively, (a) Dividends, and (b) any (i) payment or prepayments of principal, premium or penalty on any Subordinated Debt of the Borrower or any Subsidiary of the Borrower, (ii) defeasance, redemption, purchase, repurchase or other acquisition or retirement for value, in whole or in part, of any Institutional Debt (including, without limitation, the setting aside of assets or the deposit of funds therefor), (iii) prepayment of interest on any Institutional Debt and (iv) prepayment of principal, premium or penalty on any Institutional Debt. "Restricted Subsidiary" means any direct or indirect Subsidiary of the Borrower other than an Unrestricted Subsidiary. "Revolving Commitment Fee" has the meaning specified in Section 2.4(a) hereof. "Revolving Commitment Maturity Date" means August 28, 2002, or the earlier date of termination in whole of the Revolving Credit Commitment pursuant to Section 2.6 or 8.2 hereof. "Revolving Credit Advance" means an Advance made pursuant to Section 2.1(a) hereof. "Revolving Credit Commitment" means $10,000,000.00 as reduced pursuant to Section 2.6. "Revolving Credit Notes" means the promissory notes of Borrower evidencing Revolving Credit Advances hereunder, substantially in the form of Exhibit A hereto, together with any extension, renewal, or amendment thereof, or substitution therefor. "Rights" means rights, remedies, powers and privileges. 20 21 "Senior Officer" means any of the Chief Executive Officer, President, Chief Financial Officer, any Vice President or the Treasurer of the Borrower. "Solvent" means, with respect to any Person, that as of the date of determination, (a) the fair saleable value of the assets of such Person is greater than the total amount of liabilities (including contingent and unliquidated liabilities) of such Person, (b) such Person is able to pay the probable liabilities on such Person's then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person, and (c) such Person does not have unreasonably small capital with which to carry on its business. In computing the amount of contingent or unliquidated liabilities at any time, such liabilities will be computed at the amount which, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability discounted to present value at rates believed to be reasonable by such Person. "Special Counsel" means the law firm of Donohoe, Jameson & Carroll, P.C., or such other legal counsel as the Administrative Agent may select. "Specified Percentage" means, as to any Lender, the percentage indicated beside its name on the signature pages hereof or, if applicable, in its most recent Assignment Agreement. "Subordinated Debt" means any Indebtedness of the Borrower or any Subsidiary of the Borrower having maturities and terms, and which is subordinated to payment of the Obligations in a manner, approved in writing by the Administrative Agent, with only such changes or amendments as are not prohibited by Section 7.19 hereof. "Subsequent Pricing Period" means the period from and including the date which is the first day following the end of the Initial Pricing Period to the termination of the Commitments and the payment in full of the Obligations. "Subsidiary" of any Person means any corporation, partnership, joint venture, trust or estate or other Person of which (or in which) more than 50% of: (a) the outstanding capital stock having voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership or joint venture, (c) the beneficial interest of such trust or estate, or (d) the equity interest of such other Person, 21 22 is at the time directly or indirectly owned by such Person, by such Person and one or more of its Subsidiaries or by one or more of such Person's Subsidiaries. "Subsidiary Guaranty" means a guaranty, substantially in the form of Exhibit E hereto, executed by each Restricted Domestic Subsidiary of the Borrower, as amended, supplemented, modified, renewed or otherwise restated from time to time. "Taxes" has the meaning specified in Section 2.14 hereof. "Term Loan Advance" means an Advance made pursuant to Section 2.1(b) hereof. "Term Loan Commitment" means $50,000,000 as terminated pursuant to Section 2.1(b) hereof. "Term Loan Maturity Date" means August 28, 2002, or the earlier date of acceleration of the Term Loan Advances pursuant to Section 8.2 hereof. "Term Loan Notes" means the promissory notes of the Borrower evidencing Term Loan Advances hereunder, substantially in the form of Exhibit B hereto, together with any extension, renewal or amendment thereof, or substitution therefor. "Total Debt" means, as of any date of determination, determined for the Borrower and its Restricted Subsidiaries on a consolidated basis, (i) indebtedness for borrowed money, (ii) obligations evidenced by bonds, debentures, notes or other similar instruments, (iii) non-contingent obligations to pay the deferred purchase price of property or services other than trade payables incurred in the ordinary course of business, and (iv) Capitalized Lease Obligations. "Tribunal" means any state, commonwealth, federal, foreign, territorial, or other court or government body, subdivision, agency, department, commission, board, bureau, or instrumentality of a governmental or other regulatory or public body or authority. "UCC" means the Uniform Commercial Code of the relevant jurisdiction, as amended from time to time. "Unrestricted Subsidiaries" means, collectively, (i) the direct and indirect Foreign Subsidiaries of the Borrower other than Restricted Foreign Subsidiaries and (ii) such direct or indirect Domestic Subsidiaries of the Borrower as the Borrower shall from time to time designate as Unrestricted Subsidiaries in writing to the Administrative Agent. "Unused Portion" means an amount equal to the result of (i) the Revolving Credit Commitment minus (ii) the sum of (A) the outstanding Revolving Credit Advances plus (B) outstanding Reimbursement Obligations in respect of the Letters of Credit. 22 23 "Voting Power" means, with respect to any Person, the power ordinarily (without the occurrence of a contingency) to elect the members of the board of directors (or persons performing similar functions). Section 1.2 Amendments and Renewals. Each definition of an agreement in this Article 1 shall include such agreement as amended to date, and as amended or renewed from time to time in accordance with its terms. Section 1.3 Construction. The terms defined in this Article 1 (except as otherwise expressly provided in this Agreement) for all purposes shall have the meanings set forth in Section 1.1 hereof, and the singular shall include the plural, and vice versa, unless otherwise specifically required by the context. All accounting terms used in this Agreement which are not otherwise defined herein shall be construed in accordance with GAAP on a consolidated basis for the Borrower and its Subsidiaries, unless otherwise expressly stated herein. ARTICLE 2 Advances Section 2.1 The Advances. (a) Revolving Credit Advances. Each Lender severally agrees, upon the terms and subject to the conditions of this Agreement, to make Revolving Credit Advances to the Borrower from time to time in an aggregate principal amount not to exceed its Specified Percentage of the Revolving Credit Commitment less its Specified Percentage of the aggregate principal amount of all Reimbursement Obligations then outstanding (assuming compliance with all conditions to drawing), for the purposes set forth in Section 5.8 hereof. Subject to Section 2.9 hereof, Revolving Credit Advances may be repaid and then reborrowed. Notwithstanding any provision in any Loan Document to the contrary, in no event shall the sum of the principal amount of all outstanding Revolving Credit Advances and Reimbursement Obligations exceed the Revolving Credit Commitment. (b) Term Loan Advances. Each Lender severally agrees, upon the terms and subject to the conditions of this Agreement, to make a Term Loan Advance to the Borrower on the Agreement Date in a principal amount not to exceed its Specified Percentage of the Term Loan Commitment for the purposes set forth in Section 5.8 hereof. Notwithstanding any provision in any Loan Document to the contrary, in no event shall the principal amount of all outstanding Term Loan Advances exceed the Term Loan Commitment. Immediately upon the making of the Term Loan Advances, the Term Loan Commitment shall be automatically terminated. Term Loan Advances may not be repaid and then reborrowed. 23 24 (c) Any Advance shall, at the option of the Borrower as provided in Section 2.2 hereof (and, in the case of LIBOR Advances, subject to the provisions of Article 9 hereof), be made as a Base Rate Advance or a LIBOR Advance; provided that there shall not be outstanding, at any one time, more than five LIBOR Advances. Section 2.2 Manner of Borrowing and Disbursement. (a) Base Rate Advances. In the case of Base Rate Advances, the Borrower, through an Authorized Signatory, shall give the Administrative Agent prior to 1:00 p.m., Dallas, Texas time, on the date of any proposed Base Rate Advance irrevocable written notice, or irrevocable telephonic notice followed within one Business Day by written notice, in substantially the form of Exhibit F hereto (a "Notice of Borrowing") (provided, however, that the Borrower's failure to confirm any telephonic notice in writing shall not invalidate any notice so given), of its intention to borrow a Base Rate Advance hereunder. Such notice of borrowing shall specify the requested funding date, which shall be a Business Day, and the amount of the proposed aggregate Base Rate Advances to be made by Lenders. (b) LIBOR Advances. In the case of LIBOR Advances, the Borrower, through an Authorized Signatory, shall give the Administrative Agent at least three Business Days' irrevocable written notice, or irrevocable telephonic notice followed within one Business Day by written notice (provided, however, that the Borrower's failure to confirm any telephonic notice in writing shall not invalidate any notice so given) pursuant to a Notice of Borrowing, of its intention to borrow a LIBOR Advance hereunder. Notice shall be given to the Administrative Agent prior to 1:00 p.m., Dallas, Texas time, in order for such Business Day to count toward the minimum number of Business Days required. LIBOR Advances shall in all cases be subject to Article 9 hereof. For LIBOR Advances, the notice of borrowing shall specify the requested funding date, which shall be a Business Day, the amount of the proposed aggregate LIBOR Advances to be made by Lenders and the Interest Period selected by the Borrower, provided that no such Interest Period shall extend past the Revolving Commitment Maturity Date or the Term Loan Maturity Date, as appropriate, or prohibit or impair the Borrower's ability to comply with Section 2.5 or 2.8 hereof. (c) Continuation/Conversion. Subject to Sections 2.1 and 2.9 hereof, the Borrower shall have the option (i) to convert at any time all or any part of the outstanding Base Rate Advances to LIBOR Advances and all or any part of the outstanding LIBOR Advances to Base Rate Advances or (ii) upon expiration of any Interest Period applicable to a LIBOR Advance, to continue all or any portion of such LIBOR Advance equal to $500,000 and integral multiples of $100,000 in excess of that amount as a LIBOR Advance and the succeeding Interest Period(s) of such continued LIBOR Advance shall commence on the last day of the Interest Period of the LIBOR Advance to be continued; provided, however, (a) LIBOR Advances may only be converted into Base Rate Advances on the expiration date of the Interest Period applicable thereto unless, contemporaneously with any such conversion, the Borrower reimburses the Lenders in accordance with Section 2.9 hereof and (b) notwithstanding anything in this Agreement to the contrary, no outstanding Advance may be continued as, or converted into, a LIBOR Advance when any Default or Event of Default has 24 25 occurred and is continuing. At least three Business Days prior to a proposed conversion/continuation date, the Borrower, through an Authorized Signatory, shall give the Administrative Agent irrevocable written notice, or irrevocable telephonic notice followed within one Business Day by written notice (provided, however, that the Borrower's failure to confirm any telephonic notice in writing shall not invalidate any notice so given), stating (i) the proposed conversion/continuation date (which shall be a Business Day), (ii) the amount of the Advance to be converted/continued, (iii) in the case of a conversion to, or a continuation of, a LIBOR Advance, the requested Interest Period, and (iv) in the case of a conversion of a Base Rate Advance to a LIBOR Advance or continuation of a LIBOR Advance, stating that no Default or Event of Default has occurred and is continuing. If the Borrower shall fail to give any notice in accordance with this Section 2.2(c), the Borrower shall be deemed irrevocably to have requested that such LIBOR Advance be converted to a Base Rate Advance in the same principal amount and that any Base Rate Advance be continued as a Base Rate Advance. Notice shall be given to the Administrative Agent prior to 1:00 p.m., Dallas, Texas time, in order for such Business Day to count toward the minimum number of Business Days required. (d) Minimum Amount. The aggregate amount of Base Rate Advances to be made by the Lenders on any day shall be in a principal amount which is at least $100,000; provided, however, that such amount may equal the unused amount of the applicable Commitment. The aggregate amount of LIBOR Advances having the same Interest Period and to be made by the Lenders on any day shall be in a principal amount which is at least $500,000 and which is an integral multiple of $100,000. (e) Notice and Disbursement. The Administrative Agent shall promptly notify the Lenders of each notice received from the Borrower pursuant to this Section. Each Lender shall, not later than 2:00 p.m., Dallas, Texas time, on the date of any Advance, deliver to the Administrative Agent, at its address set forth herein, such Lender's Specified Percentage of such Advance in immediately available funds in accordance with the Administrative Agent's instructions. Prior to 2:30 p.m., Dallas, Texas time, on the date of any Advance hereunder, the Administrative Agent shall, subject to satisfaction of the applicable conditions set forth in Article 3, disburse the amounts made available to the Administrative Agent by the Lenders by (i) transferring such amounts by wire transfer pursuant to the Borrower's instructions, or (ii) in the absence of such instructions, crediting such amounts to the account of the Borrower maintained with the Administrative Agent. All Advances shall be made by each Lender according to its Specified Percentage. Section 2.3 Interest. (a) On Base Rate Advances. (i) The Borrower shall pay interest on the outstanding unpaid principal amount of the Base Rate Advances outstanding from time to time, until such Base Rate Advances are due (whether at maturity, by reason of acceleration, by scheduled reduction, or otherwise) or repaid at a simple interest rate per annum equal to the Base Rate Basis for the Base Rate 25 26 Advances as in effect from time to time. If at any time the Base Rate Basis would exceed the Highest Lawful Rate, interest payable on the Base Rate Advances shall be limited to the Highest Lawful Rate, but the Base Rate Basis shall not thereafter be reduced below the Highest Lawful Rate until the total amount of interest accrued on the Base Rate Advances equals the amount of interest that would have accrued if the Base Rate Basis had been in effect at all times; provided, that subject to the provisions of Section 11.9 hereof, if at any time the Highest Lawful Rate continuously exceeds the Base Rate Basis until the Advances are due (whether at maturity, by reason of acceleration, by scheduled reduction or otherwise), the total amount of interest accrued on the Base Rate Advances for such period shall be calculated at the Highest Lawful Rate and no other amounts of accrued interest shall be due from the Borrower. (ii) Interest on the Base Rate Advances shall be computed on the basis of a year of 365 or 366 days, as appropriate, for the actual number of days elapsed, and shall be payable in arrears on each Quarterly Date and on the Revolving Commitment Maturity Date and the Term Loan Maturity Date, as appropriate. (b) On LIBOR Advances. (i) The Borrower shall pay interest on the unpaid principal amount of each LIBOR Advance, from the date such Advance is made until it is due (whether at maturity, by reason of acceleration, by scheduled reduction, or otherwise) or repaid, at a rate per annum equal to the LIBOR Basis for such LIBOR Advance. The Administrative Agent, whose determination shall be prima facie evidence of the LIBOR Basis, shall determine the LIBOR Basis on the second Business Day prior to the applicable funding, conversion or continuation date and shall notify the Borrower and the Lenders of such LIBOR Basis. (ii) Subject to Section 11.9 hereof, interest on each LIBOR Advance shall be computed on the basis of a 360-day year for the actual number of days elapsed, and shall be payable in arrears on the applicable Payment Date and on the Revolving Commitment Maturity Date and the Term Loan Maturity Date, as appropriate; provided, however, that if the Interest Period for such LIBOR Advance exceeds three months, interest shall also be due and payable in arrears on each three-month anniversary of the commencement of such Interest Period during such Interest Period. (c) Interest After an Event of Default. (i) After an Event of Default specified in Section 8.1(b) as a result of the failure to make any required principal or interest payment on the Loans or any required payment of fees under Sections 2.4(a) or 2.15(f), and during any continuance thereof, at the option of the Determining Lenders, the Obligations shall bear interest at a rate per annum equal to the Default Rate. Such interest shall be payable on the earlier of demand or the Revolving Commitment Maturity Date and the Term Loan Maturity Date, as appropriate, and shall accrue until the earlier of (i) waiver or cure of the applicable Event of Default, (ii) agreement by the Determining Lenders to rescind the charging of interest at the Default Rate, or (iii) payment in full 26 27 of the Obligations. The Lenders shall not be required to accelerate the maturity of the Advances, to exercise any other rights or remedies under the Loan Documents, or to give notice to the Borrower of the decision to charge interest at the Default Rate. Section 2.4 Fees. (a) Revolving Commitment Fee. Subject to Section 11.9 hereof, the Borrower agrees to pay to the Administrative Agent, for the account of the Lenders according to their Specified Percentages, a commitment fee on the daily average Unused Portion during the period commencing on the Agreement Date and ending on the Revolving Commitment Maturity Date (which fee shall be (i) payable in arrears on each Quarterly Date and on the Revolving Commitment Maturity Date, (ii) fully earned when due and, subject to Section 11.9 hereof, nonrefundable when paid and (iii) subject to Section 11.9 hereof, computed on the basis of a 365 or 366-day year, as applicable, for the actual number of days elapsed) at the rate of 0.375% per annum. (b) Other Fees. Subject to Section 11.9 hereof, the Borrower agrees to pay to the Administrative Agent, for the account of the Administrative Agent and/or the Documentation Agent, as applicable, the fees on the dates and in the amounts specified in the letter agreements (collectively, the "Fee Letters"), dated as of, or prior to, the Agreement Date, among the Borrower, the Administrative Agent and/or the Documentation Agent. Section 2.5 Prepayments. (a) Voluntary Advance Prepayments. Upon one Business Day's prior telephonic notice (to be promptly followed by written notice) by an Authorized Signatory to the Administrative Agent, LIBOR Advances may be voluntarily prepaid but only so long as the Borrower concurrently reimburses the Lenders in accordance with Section 2.9 hereof. Any notice of prepayment shall be irrevocable. Subject to the other provisions of this Agreement, Base Rate Advances may be voluntarily prepaid, in whole or in part, without prior notice to the Administrative Agent or any Lender. (b) Mandatory Prepayment. On or before the date of any reduction of the Revolving Credit Commitment, the Borrower shall prepay applicable outstanding Revolving Credit Advances in an amount necessary to reduce the sum of outstanding Revolving Credit Advances and Reimbursement Obligations to an amount less than or equal to the Revolving Credit Commitment as so reduced. To the extent required by the immediately preceding sentence, the Borrower shall first prepay all Base Rate Advances and shall thereafter prepay LIBOR Advances. To the extent that any prepayment requires that a LIBOR Advance be repaid on a date other than the last day of its Interest Period, the Borrower shall reimburse each Lender in accordance with Section 2.9 hereof. To the extent that outstanding Revolving Credit Advances exceed the Revolving Credit Commitment after any reduction thereof, the Borrower shall repay any such excess amount and all accrued interest attributable to such excess Revolving Credit Advances on the date of such reduction. 27 28 (c) Prepayments from Sales of Assets. Within two Business Days (or, if later, at the end of any Interest Period for any LIBOR Advance outstanding on the date of receipt by the Borrower, but in any event not later than thirty days) after receipt of Net Cash Proceeds from the sale or disposition after the date hereof by the Borrower or any Restricted Subsidiary of any assets, (other than sales or dispositions of Equity Interests of any such Restricted Subsidiary or assets expressly permitted pursuant to clauses (a) through (c), (e), (f), (g), (h) or (i) of Section 7.5 hereof), the Borrower shall prepay the Term Loan Advances (and, thereafter, the Revolving Credit Advances when there are no Term Loan Advances outstanding) in a principal amount equal to 75% of the amount of such Net Cash Proceeds (the "Asset Sale Prepayment Amount"), provided, however to the extent that any Institutional Debt (other than Subordinated Debt) is required to be prepaid pursuant to the terms of the applicable documentation governing such Institutional Debt, the Asset Sale Prepayment Amount shall be adjusted to be an amount (the "Adjusted Asset Sale Prepayment Amount") equal to the Asset Sale Prepayment Amount multiplied by a fraction, the numerator of which is the outstanding principal amount of Advances and the denominator of which is the sum of the outstanding principal amount or accreted value of Advances and such Institutional Debt, provided that to the extent an amount of such Net Cash Proceeds equal to the Asset Sale Prepayment Amount less the Adjusted Asset Sale Prepayment Amount is not utilized to redeem or repay Institutional Debt in accordance with the terms of the applicable documents in respect of such Institutional Debt, such excess amount shall be applied to repay Term Loan Advances (and, thereafter, the Revolving Credit Advances when there are no Term Loss Advances outstanding). Each such prepayment of Term Loan Advances pursuant to this Section 2.5(c) shall be applied pro rata to the unpaid scheduled installment payments of the Term Loans. Any such prepayment of Revolving Credit Advances pursuant to this Section 2.5(c) shall permanently reduce the Revolving Credit Commitment by the amount of such prepayment. (d) Prepayment from Sales of Equity Interests. Within two Business Days (or, if later, at the end of any Interest Period for any LIBOR Advance outstanding on the date of receipt by the Borrower, but in any event not later than thirty days) after receipt of Net Cash Proceeds from the sale or disposition after the date hereof to any Person of any Equity Interests of the Borrower or any of its Restricted Subsidiaries, the Borrower shall apply (i) with respect to a Public Equity Offering of such Equity Interests, 100% of such aggregate Net Cash Proceeds and (ii) with respect to any disposition of such Equity Interests which is not a Public Equity Offering; 75% of such aggregate Net Cash Proceeds, except for the sale or disposition of Equity Interests the proceeds of which are utilized to purchase Equity Interests with respect to Permitted Distributions under clause (d) of the definition thereof, to prepay the Term Loan Advances (and, thereafter, the Revolving Credit Advances when there are no Term Loan Advances outstanding). Each such prepayment of the Term Loan Advances pursuant to this Section 2.5(d) shall be applied pro rata to the unpaid scheduled installment payments of the Term Loan Advances. Any such prepayment of Revolving Credit Advances pursuant to this Section 2.5(d) shall permanently reduce the Revolving Credit Commitment by the amount of such prepayment. (e) Prepayment from Issuance of Institutional Debt. Within two Business Days (or, if later, at the end of any Interest Period for any LIBOR Advance outstanding on the date of receipt by 28 29 the Borrower, but in any event not later than thirty days) after the receipt of Net Cash Proceeds from the issuance of Institutional Debt (other than permitted refinancings pursuant to Section 7.1(d)) by the Borrower or any Restricted Subsidiary of the Borrower, the Borrower shall apply 100% of such aggregate Net Cash Proceeds to prepay the Term Loan Advances (and, thereafter, the Revolving Credit Advances when there are no Term Loan Advances outstanding). Each such prepayment of the Term Loan Advances pursuant to this Section 2.5(e) shall be applied pro rata to the unpaid scheduled installment payments of the Term Loan Advances. Any such prepayment of Revolving Credit Advances pursuant to this Section 2.5(e) shall permanently reduce the Revolving Credit Commitment by the amount of such prepayment. (f) Payments, Generally. Any prepayment of any Advance shall be accompanied by interest accrued on the principal amount being prepaid. Any payment required to be made pursuant to Sections 2.5(d), (e) or (f) above shall first prepay all Base Rate Advances and shall thereafter prepay LIBOR Advances. Any voluntary partial payment of a Base Rate Advance shall be in a principal amount which is at least $100,000. Any voluntary partial payment of a LIBOR Advance shall be in a principal amount which is at least $250,000 and which is an integral multiple of $50,000, and to the extent that any prepayment of a LIBOR Advance is made on a date other than the last day of its Interest Period, the Borrower shall reimburse each Lender in accordance with Section 2.9 hereof. Any voluntary prepayment of any Term Loan Advance shall be applied pro rata to the unpaid scheduled installment payments of the Term Loan Advances. Section 2.6 Reduction of Revolving Credit Commitment. (a) Voluntary Reduction. The Borrower shall have the right, upon not less than 5 Business Days' notice by an Authorized Signatory to the Administrative Agent (if telephonic, to be confirmed by telex or in writing on or before the date of reduction or termination), which shall promptly notify the Lenders, to terminate or reduce the Revolving Credit Commitment. Each partial termination shall be in an aggregate amount which is at least $500,000 and which is an integral multiple of $100,000, and no voluntary reduction in the Revolving Credit Commitment shall cause any LIBOR Advance to be repaid prior to the last day of its Interest Period unless the Borrower shall reimburse each Lender in accordance with Section 2.9 hereof. (b) Mandatory Reduction. On the Revolving Credit Commitment Maturity Date, the Revolving Credit Commitment shall be automatically reduced to zero. In addition, the Revolving Credit Commitment shall be permanently reduced by the amount of any prepayment of Revolving Credit Advances required pursuant to Sections 2.5(c), (d) and (e) hereof. (c) General Requirements. Upon any reduction of the Revolving Credit Commitment pursuant to this Section, the Borrower shall immediately make a repayment of Revolving Credit Advances in accordance with Section 2.5(b) hereof. The Borrower shall reimburse each Lender in connection with any such payment in accordance with Section 2.9 hereof to the extent applicable. The Borrower shall not have any right to rescind any termination or reduction. Once reduced, the Revolving Credit Commitment may not be increased or reinstated. 29 30 Section 2.7 Non-Receipt of Funds by the Administrative Agent. Unless the Administrative Agent shall have been notified by a Lender prior to the date of any proposed Advance (which notice shall be effective upon receipt) that such Lender does not intend to make the proceeds of such Advance available to the Administrative Agent, the Administrative Agent may assume that such Lender has made such proceeds available to the Administrative Agent on such date, and the Administrative Agent may in reliance upon such assumption (but shall not be required to) make available to the Borrower a corresponding amount. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such amount on demand from such Lender (or, if such Lender fails to pay such amount forthwith upon such demand, from the Borrower) together with interest thereon in respect of each day during the period commencing on the date such amount was available to the Borrower and ending on (but excluding) the date the Administrative Agent receives such amount from (a) the Lender, at a per annum rate equal to the lesser of (i) the Highest Lawful Rate or (ii) the Federal Funds Rate, or (b) the Borrower, at the per annum rate applicable at the time to such Advance. No Lender shall be liable for any other Lender's failure to fund an Advance hereunder. Section 2.8 Payment of Principal of Advances. (a) Revolving Credit Advances. To the extent not otherwise required to be paid earlier as provided herein, the principal amount of the Revolving Credit Advances shall be due and payable on the Revolving Commitment Maturity Date. (b) Term Loan Advances. To the extent not otherwise required to be paid earlier as provided herein, the principal amount of the Term Loan Advances shall be repaid on each Quarterly Date and on the Term Loan Maturity Date in such amounts as set forth next to each such date below: Amount of Reduction of Quarterly Date Term Loan Advances as of each Date -------------- ---------------------------------- October 31, 1998 $2,500,000 January 31, 1999 $2,500,000 April 30, 1999 $2,500,000 July 31, 1999 $2,500,000 October 31, 1999 $2,500,000 January 31, 2000 $2,500,000 April 30, 2000 $2,500,000 July 31, 2000 $2,500,000 October 31, 2000 $2,500,000 January 31, 2001 $2,500,000 April 30, 2001 $2,500,000 July 31, 2001 $2,500,000 October 31, 2001 $2,500,000 January 31, 2002 $2,500,000 30 31 Amount of Reduction of Quarterly Date Term Loan Advances as of each Date -------------- ---------------------------------- April 30, 2002 $5,000,000 July 31, 2002 $5,000,000 Maturity Date $5,000,000 or such other amount of Term Loan Advances then outstanding Section 2.9 Reimbursement. Whenever any Lender shall sustain or incur any losses or reasonable out-of-pocket expenses in connection with (a) failure by the Borrower to borrow any LIBOR Advance after having given notice of its intention to borrow in accordance with Section 2.2 hereof (whether by reason of the Borrower's election not to proceed or the non-fulfillment of any of the conditions set forth in Article 3 hereof), (b) any prepayment for any reason of any LIBOR Advance in whole or in part (including, but not limited to, a prepayment pursuant to Section 9.3(b) hereof) on other than the last day of an Interest Period applicable to such LIBOR Advance, or (c) any prepayment of any of its LIBOR Advances that is not made on any date specified in a notice of prepayment given by the Borrower, the Borrower agrees to pay to any such Lender, within 30 days after demand by such Lender, an amount sufficient to compensate such Lender for all such losses (excluding loss of anticipated profits) and out-of-pocket expenses, subject to Section 11.9 hereof; provided, that the Borrower shall not be liable for any such losses and out-of-pocket expenses that are attributable to such Lender's gross negligence or willful misconduct and provided further that any claim for any such losses or expenses shall be made by the applicable Lender within 90 days after such Lender becomes aware of the facts or circumstances giving rise thereto. A certificate as to any amounts payable to any Lender under this Section 2.9 submitted to the Borrower by such Lender shall certify that such amounts were actually incurred by such Lender and shall show in reasonable detail an accounting of the amount payable and the calculations used to determine in good faith such amount and shall be prima facie evidence of such amount. Section 2.10 Manner of Payment. (a) Each payment (including prepayments) by the Borrower of the principal of or interest on the Advances, fees, and any other amount owed under this Agreement or any other Loan Document shall be made not later than 2:00 p.m. (Dallas, Texas time) on the date specified for payment under this Agreement to the Administrative Agent at the Administrative Agent's office, in lawful money of the United States of America constituting immediately available funds. (b) If any payment under this Agreement or any other Loan Document shall be specified to be made upon a day which is not a Business Day, it shall be made on the next succeeding day which is a Business Day, unless, with respect to a payment due in respect of a LIBOR Advance, such Business Day falls in another calendar month, in which case payment shall be made on the preceding Business Day. Any extension of time shall in such case be included in computing interest and fees, if any, in connection with such payment. 31 32 (c) The Borrower agrees to pay principal, interest, fees and all other amounts due under the Loan Documents without deduction for set-off or counterclaim or any deduction whatsoever except, to the extent permitted hereunder, applicable withholding taxes. (d) If some but less than all amounts due from the Borrower are received by the Administrative Lender, the Administrative Lender shall apply such amounts in the following order of priority: (i) to the payment of the Administrative Lender's expenses incurred on behalf of the Lenders then due and payable to the Lenders, if any; (ii) to the payment of all other fees then due and payable; (iii) to the payment of interest then due and payable on the Advances; (iv) to the payment of all other amounts not otherwise referred to in this clause (d) then due and payable under the Loan Documents; and (v) to the payment of principal then due and payable on the Advances. (e) Except where otherwise expressly provided in this Agreement, each payment by the Borrower in respect of obligations relating to the Advances (whether for principal, interest, fees or otherwise) shall be made to the Administrative Lender for the Lenders pro rata in accordance with their respective Specified Percentages. Section 2.11 LIBOR Lending Offices. Each Lender's initial LIBOR Lending Office is set forth opposite its name in Schedule 1 attached hereto. Each Lender shall have the right at any time and from time to time to designate a different office of itself or of any Affiliate of such Lender as such Lender's LIBOR Lending Office, and to transfer any outstanding LIBOR Advance to such LIBOR Lending Office. No such designation or transfer shall result in any liability on the part of the Borrower for increased costs or expenses resulting solely from such designation or transfer (except any such transfer which is made by a Lender pursuant to Section 9.2 or 9.3 hereof, or otherwise for the purpose of complying with Applicable Law). Increased costs for expenses resulting from a change in law occurring subsequent to any such designation or transfer shall be deemed not to result solely from such designation or transfer; provided, that each Lender agrees to use its best efforts to redesignate any LIBOR Lending Office affected by such change in law to any other LIBOR Lending Office available to such Lender (consistent with regulatory requirements) if, in the reasonable opinion of such Lender, such redesignation can be affected without material cost to such Lender. Section 2.12 Sharing of Payments. If any Lender shall obtain a payment (whether voluntary or involuntary, due to the exercise of any right of set-off, or otherwise) on account of its Advances (other than pursuant to Sections 2.4(b), 2.14, 2.15(d), 9.3 or 9.5) in excess of its share of payments made by the Borrower according to its Specified Percentage, then in each case, such Lender shall purchase from each other Lender such participation in the Advances made by such other Lender as shall be necessary to cause such purchasing Lender to share a ratable portion of the excess payment with each other Lender (based on its Specified Percentage); provided, however, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, the purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section, to the fullest extent permitted by law, may exercise all its rights of payment 32 33 (including the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. Section 2.13 Calculation of LIBOR Rate. The provisions of this Agreement relating to calculation of the LIBOR Rate are included only for the purpose of determining the rate of interest or other amounts to be paid hereunder that are based upon such rate, it being understood that each Lender shall be entitled to fund and maintain its funding of all or any part of a LIBOR Advance as it sees fit. Section 2.14 Taxes. (a) Any and all payments by the Borrower hereunder shall be made, in accordance with Section 2.10, free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges and withholdings, and all liabilities with respect thereto, excluding, in the case of each Lender and the Administrative Agent, (i) taxes imposed on, based upon or measured by its overall net income, net worth or capital, and franchise taxes, doing business taxes or minimum taxes imposed on it, by the jurisdiction under the laws of which such Lender or the Administrative Agent (as the case may be) is organized or in which it has its applicable lending office or any political subdivision thereof; (ii) taxes imposed by reason of failure by the Lender or the Administrative Agent to comply with the requirements of paragraph (e) of this Section 2.14; and (iii) in the case of any Lender, any taxes in the nature of transfer, stamp, recording or documentary taxes resulting from a transfer (other than as a result of foreclosure) by such Lender of all or any portion of its interest in this Agreement, the Notes or any other Loan Documents (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being hereinafter referred to as "Taxes"). If the Borrower shall be required by Law to deduct or withhold any Taxes from or in respect of any sum payable hereunder to any Lender or the Administrative Agent, (x) the sum payable shall be increased as may be necessary so that after making all required deductions for Taxes (including deductions applicable to additional sums payable under this Section 2.14) such Lender or the Administrative Agent (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (y) the Borrower shall make such deductions and (z) the Borrower shall pay the full amount of Taxes deducted to the relevant taxation authority or other authority in accordance with Applicable Law. (b) In addition, the Borrower agrees to pay any and all stamp and documentary taxes and any and all other excise and property taxes, charges and similar levies (other than taxes described in clause (iii) of the first sentence of Section 2.14(a)) that arise from any payment made hereunder or from the execution, delivery or registration of, or otherwise with respect to, this Agreement or any other Loan Document (hereinafter referred to as "Other Taxes"). (c) The Borrower will indemnify each Lender and the Administrative Agent for the full amount of Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.14) paid by such Lender or the Administrative Agent (as the case may be) and all liabilities (including penalties, additions to tax, 33 34 interest and reasonable expenses) arising therefrom or with respect thereto whether or not such Taxes or Other Taxes were correctly or legally asserted, other than penalties, additions to tax, interest and expenses which are finally judicially determined by a court of competent jurisdiction to have arisen as a result of gross negligence or wilful misconduct on the part of such Lender or the Administrative Agent. Any claim made by the Administrative Agent or a Lender under this Section 2.14 (c) shall be made by the Administrative Agent or such Lender within 90 days after the Administrative Agent or the applicable Lender (as the case may be) becomes aware of the fact or circumstance giving rise thereto. This indemnification by the Borrower shall be made within 30 days from the date such Lender or the Administrative Agent (as the case may be) makes written demand therefor. (d) As soon as practicable after the date of any payment of Taxes, the Borrower will furnish to the Administrative Agent the original or a certified copy of a receipt evidencing payment thereof. For purposes of this Section 2.14 the terms "United States" and "United States Person" shall have the meanings set forth in Section 7701 of the Code. (e) Each Lender which is not a United States Person hereby agrees that: (i) it shall, no later than the Agreement Date (or, in the case of a Lender which becomes a party hereto pursuant to Section 11.6 after the Agreement Date, the date upon which such Lender becomes a party hereto) and at such times as necessary in the reasonable determination of the Borrower, deliver to the Borrower through the Administrative Agent, with a copy to the Administrative Agent: (A) if any lending office is located in the United States, two (2) accurate and complete signed originals of Internal Revenue Service Form 4224 or any successor form thereto ("Form 4224"), (B) if any lending office is located outside the United States, two (2) accurate and complete signed originals of Internal Revenue Service Form 1001 or any successor form thereto ("Form 1001"), in each case establishing that such Lender is on the date of delivery thereof entitled to receive payments of principal, interest, fees, or other amounts payable at such lending office or lending offices under this Agreement or any other Loan Document free from deduction or withholding of United States federal income tax; (ii) if at any time such Lender changes its lending office or lending offices or selects an additional lending office it shall, at the same time or reasonably promptly thereafter, but only to the extent the forms previously delivered by it hereunder are not effective with respect to such changed or additional lending office or lending offices, deliver to the Borrower through the Administrative Agent, with a copy to the Administrative Agent, in replacement for the forms previously delivered by it hereunder: 34 35 (A) if such changed or additional lending office is located in the United States, two (2) accurate and complete signed originals of Form 4224; or (B) otherwise, two (2) accurate and complete signed originals of Form 1001, in each case establishing that such Lender is on the date of delivery thereof entitled to receive payments of principal, interest, fees, or other amounts payable at such changed or additional lending office under this Agreement or any other Loan Document free from deduction of withholding of United States federal income tax; (iii) it shall, before or promptly after the occurrence of any event (including the passing of time but excluding any event mentioned in clause (ii) above) requiring a change in the most recent Form 4224 or Form 1001 previously delivered by such Lender and if the delivery of the same be lawful, deliver to the Borrower through the Administrative Agent, with a copy to the Administrative Agent, two (2) accurate and complete original signed copies of Form 4224 or Form 1001, in each case establishing that such Lender is on the date of delivery thereof entitled to receive payments of principal, interest, fees, or other amounts payable under this Agreement or any other Loan Document free from deduction or withholding of United States federal income tax, in replacement for the forms previously delivered by such Lender; (iv) it shall, promptly upon the request of the Borrower to that effect, deliver to the Borrower such other forms or similar documentation as may be required from time to time by any applicable law, treaty, rule or regulation in order to establish such Lender's tax status for withholding purposes; and (v) it shall notify the Borrower promptly after any event (including an amendment to or a change in any applicable law or regulation or in the written interpretation thereof by any regulatory authority or any judicial authority or by ruling applicable to such Lender of any governmental authority charged with the interpretation or administration of any law) shall occur that results in such Lender no longer being capable of receiving payments under this Agreement without any deduction or withholding of United States federal income tax. (f) Without prejudice to the survival of any other agreement of the Borrower hereunder, the agreements and obligations of the Borrower contained in this Section 2.14 shall survive the payment in full of the Obligations. (g) Each Lender (and the Administrative Agent with respect to payments to the Administrative Agent for its own account) agrees that (i) it will take all reasonable actions by all usual means to maintain all exemptions, if any, available to it from United States withholding taxes (whether available by treaty, existing administrative waiver or by virtue of the location of any 35 36 Lender's lending office), (ii) it will use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to change the jurisdiction of its lending office, if the making of such a change would avoid the need for, or reduce the amount of, any such additional amounts which may thereafter accrue and would not, in the reasonable judgment of such Lender, be disadvantageous to such Lender, and (iii) otherwise cooperate with the Borrower to minimize amounts payable by the Borrower under this Section 2.14; provided, however, no Lender nor the Administrative Agent shall be obligated by reason of this Section 2.14(g) to (a) disclose any information regarding its tax affairs or tax computations or reorder its tax or other affairs or tax or other planning or (b) contest the payment of any Taxes or Other Taxes. Subject to the foregoing, to the extent the Borrower pays sums pursuant to this Section 2.14 and the Lender or the Administrative Agent receives a refund of any or all of such sums, the party receiving such refund shall promptly pay over all such refunded sums to the Borrower, provided that no Default or Event of Default is in existence at such time. At such time, if any, that such Default or Event of Default is cured or waived, the party receiving such refund shall promptly pay over all such refunded sums to the Borrower. (h) If the Borrower becomes obligated to pay additional amounts described in this Section 2.14 to any Lender, the Borrower may designate a financial institution reasonably acceptable to the Administrative Agent to replace such Lender by purchasing for cash and receiving an assignment of such Lender's pro rata share of the Commitments and the Rights of such Lender under the Loan Documents without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding amounts owed to such Lender (including such additional amounts owing to such Lender pursuant to this Section 2.14). Upon execution of an Assignment Agreement, such other financial institution shall be deemed to be a "Lender" for all purposes of this Agreement as set forth in Section 11.6 hereof. Section 2.15 Letters of Credit. (a) The Letter of Credit Facility. The Borrower may request the Issuing Bank, on the terms and conditions hereinafter set forth, to issue, and the Issuing Bank shall, if so requested, issue, letters of credit (the "Letters of Credit") for the account of the Borrower from time to time on any Business Day from the date of the initial Advance until the Revolving Commitment Maturity Date in an aggregate maximum drawable amount (assuming compliance with all conditions to drawing) not to exceed, at any time outstanding, the lesser of (i) $2,000,000 (or the U.S. dollar equivalent thereof in foreign currencies acceptable to the Issuing Bank) (the "Letter of Credit Facility") and (ii) an amount equal to the Revolving Credit Commitment minus the aggregate principal amount of Revolving Credit Advances then outstanding. No Letter of Credit shall have an expiration date (including all rights of renewal) later than the earlier of (i) the Revolving Commitment Maturity Date or (ii) one year after the date of issuance thereof. Immediately upon the issuance of each Letter of Credit, the Issuing Bank shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed to have purchased and received from the Issuing Bank, in each case irrevocably and without any further action by any party, an undivided interest and participation in such Letter of Credit, each drawing thereunder and the obligations of the Borrower under this Agreement in respect thereof in an amount equal to the product of (x) such Lender's Specified 36 37 Percentage times (y) the maximum amount available to be drawn under such Letter of Credit (assuming compliance with all conditions to drawing). Within the limits of the Letter of Credit Facility, and subject to the limits referred to above, the Borrower may request the issuance of Letters of Credit under this Section 2.15(a), repay any Revolving Credit Advances resulting from drawings thereunder pursuant to Section 2.15(c) and request the issuance of additional Letters of Credit under this Section 2.15(a). (b) Request for Issuance. Each Letter of Credit shall be issued upon notice, given not later than 1:00 p.m. (Dallas, Texas time) on the second Business Day prior to the date of the proposed issuance of such Letter of Credit (or such shorter period of time as may be acceptable to the Issuing Bank), by the Borrower to the Issuing Bank. Each Letter of Credit shall be issued upon notice given in accordance with the terms of any separate agreement between the Borrower and the Issuing Bank in form and substance reasonably satisfactory to the Borrower and the Issuing Bank providing for the issuance of Letters of Credit pursuant to this Agreement and containing terms and conditions not inconsistent with this Agreement (a "Letter of Credit Agreement"), provided that if any such terms and conditions (other than any contractual choice of law to govern any such Letter of Credit) are inconsistent with this Agreement, this Agreement shall control. Each such notice of issuance of a Letter of Credit by the Borrower (a "Notice of Issuance") shall be by telecopier, specifying therein, in the case of a Letter of Credit, the requested (i) date of such issuance (which shall be a Business Day), (ii) maximum amount of such Letter of Credit, (iii) expiration date of such Letter of Credit, (iv) name and address of the beneficiary of such Letter of Credit, and (v) form of such Letter of Credit and specifying such other information as shall be required pursuant to the relevant Letter of Credit Agreement. If the requested terms of such Letter of Credit are acceptable to the Issuing Bank in its reasonable discretion, the Issuing Bank will, upon fulfillment of the applicable conditions set forth in Article 3 hereof, make such Letter of Credit available to the Borrower at its office referred to in Section 11.1 or as otherwise agreed with the Borrower in connection with such issuance. (c) Drawing and Reimbursement. The payment by the Issuing Bank of a draft drawn under any Letter of Credit shall constitute for all purposes of this Agreement the making by the Issuing Bank of a Revolving Credit Advance, which shall bear interest at the Base Rate Basis, in the amount of such draft (but without any requirement for compliance with the conditions set forth in Article 3 hereof). In the event that a drawing under any Letter of Credit is not reimbursed by the Borrower by 12:00 noon (Dallas, Texas time) on the first Business Day after such drawing, the Issuing Bank shall promptly notify Administrative Agent and each other Lender. Each such Lender shall, on the first Business Day following such notification, make a Revolving Credit Advance, which shall bear interest at the Base Rate Basis, and shall be used to repay the applicable portion of the Issuing Bank's Advance with respect to such Letter of Credit, in an amount equal to the amount of its participation in such drawing for application to reimburse the Issuing Bank (but without any requirement for compliance with the applicable conditions set forth in Article 3 hereof) and shall make available to the Administrative Agent for the account of the Issuing Bank, by deposit at the Administrative Agent's office, in same day funds, the amount of such Advance. In the event that any Lender fails to make available to the Administrative Agent for the account of the Issuing Bank the 37 38 amount of such Advance, the Issuing Bank shall be entitled to recover such amount on demand from such Lender together with interest thereon at a rate per annum equal to the lesser of (i) the Highest Lawful Rate or (ii) the Federal Funds Rate. (d) Increased Costs. If, (i) any change after the Agreement Date in any Law or in the interpretation thereof by any Tribunal charged with the administration thereof or (ii) compliance by a Lender with any Law or any guideline or requirement from any central bank or Tribunal (whether or not having the force of law) adopted or promulgated after the Agreement Date (including any implementation of the Basle Accord or similar guideline or requirement adopted, promulgated or becoming effective after the Agreement Date) shall either (A) impose, modify or deem applicable any reserve, special deposit or similar requirement against letters of credit or guarantees issued by, or assets held by, or deposits in or for the account of, the Issuing Bank or any Lender or any corporation controlling the Issuing Bank or any Lender or (B) impose on the Issuing Bank or any Lender or any corporation controlling the Issuing Bank or any Lender any other condition regarding this Agreement or any Letter of Credit, and the result of any event referred to in the preceding clause (A) or (B) shall be to materially increase the cost to the Issuing Bank or any corporation controlling the Issuing Bank of issuing or maintaining any Letter of Credit or to any Lender or any corporation controlling such Lender of purchasing any participation therein or making any Advance pursuant to Section 2.15(c), then, within 10 days after demand by the Issuing Bank or such Lender, the Borrower shall, subject to Section 11.9 hereof, pay to the Issuing Bank or such Lender, from time to time as specified by the Issuing Bank or such Lender, additional amounts that shall be sufficient to compensate the Issuing Bank or such Lender or any corporation controlling such Lender for such increased cost. Any claim by the Issuing Bank or any Lender under this Section 2.15 (d) shall be made within 90 days after the Issuing Bank or such Lender (as the case may be) becomes aware of the fact or circumstance giving rise thereto. A certificate as to the amount of such increased cost, submitted to the Borrower by the Issuing Bank or such Lender, shall certify that such increased costs were actually incurred by the Issuing Bank or such Lender and shall show in reasonable detail an accounting of the amount payable and the calculation used to determine in good faith such amount and shall constitute prima facie evidence of such amount. In determining such amount, the Issuing Bank or such Lender may use any reasonable averaging or attribution method which provides for the allocation of such amounts among its affected customers in good faith and on an equitable basis. Nothing in this Section 2.15(d) shall provide the Borrower or any Subsidiary of the Borrower the right to inspect the records, files or books of the Issuing Bank or any Lender. If the Borrower becomes obligated to pay additional amounts described in this Section 2.15(d) to any Lender, the Borrower may designate a financial institution reasonably acceptable to the Administrative Agent to replace such Lender by purchasing for cash and receiving an assignment of such Lender's pro rata share of the Commitments and the Rights of such Lender under the Loan Documents without recourse to or warranty by, or expenses to, such Lender, for a purchase price equal to the outstanding amounts owing to such Lender (including such additional amounts owing to such Lender pursuant to this Section 2.15(d)). Upon execution of an Assignment Agreement, such other financial institution shall be deemed to be a "Lender" for all purposes of this Agreement as set forth in Section 11.6 hereof. The obligations of the Borrower under this Section 2.15(d) shall survive termination of this Agreement. The Issuing Bank or any Lender claiming any additional 38 39 compensation under this Section 2.15(d) shall use reasonable efforts (consistent with legal and regulatory restrictions) to reduce or eliminate any such additional compensation which may thereafter accrue and which efforts would not, in the reasonable judgment of the Issuing Bank or such Lender, be otherwise disadvantageous. (e) Obligations Absolute. The obligations of the Borrower under this Agreement with respect to any Letter of Credit, any Letter of Credit Agreement and any other agreement or instrument relating to any Letter of Credit or any Revolving Credit Advance pursuant to Section 2.15(c) shall be unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement, such Letter of Credit Agreement and such other agreement or instrument under all circumstances, including, without limitation, the following circumstances: (i) any lack of validity or enforceability of this Agreement, any other Loan Document, any Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument relating thereto (collectively, the "L/C Related Documents"); (ii) (A) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations of the Borrower in respect of the Letters of Credit or any Revolving Credit Advance pursuant to Section 2.15(c) or (B) any other amendment or waiver of or any consent to departure from all or any of the L/C Related Documents; (iii) the existence of any claim, set-off, defense (other than final payment) or other right that the Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), the Issuing Bank, any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by the L/C Related Documents or any unrelated transaction; (iv) any statement or any other document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (v) payment by the Issuing Bank under a Letter of Credit against presentation of a draft or certificate that does not comply with the terms of the Letter of Credit, except for any payment made upon the Issuing Bank's gross negligence or wilful misconduct; (vi) any release or amendment or waiver of or consent to departure from any guarantee, for all or any of the Obligations of the Borrower in respect of the Letters of Credit or any Revolving Credit Advance pursuant to Section 2.15(c); or (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including, without limitation, any other circumstance that might 39 40 otherwise constitute a defense available to, or a discharge of, the Borrower or a guarantor, other than the Issuing's Bank gross negligence or wilful misconduct. (f) Compensation for Letters of Credit. (i) Credit Fee. Subject to Section 11.9 hereof, the Borrower shall pay to the Administrative Agent for the account of the Lenders according to their Specified Percentages, a per annum fee (which shall be payable quarterly in arrears on each Quarterly Date and on the Revolving Commitment Maturity Date) equal to the product of the Applicable LIBOR Rate Margin in effect from time to time multiplied by the average daily amount available for drawing under all outstanding Letters of Credit. Subject to Section 11.9 hereof, such fee shall be computed on the basis of a year consisting of 365 or 366 days, as applicable, for the actual number of days elapsed. (ii) Fronting Fee. Subject to Section 11.9 hereof, the Borrower shall pay to the Administrative Agent for the account of the Issuing Bank a per annum fronting fee (which shall be payable quarterly in arrears on each Quarterly Date and on the Revolving Commitment Maturity Date) in an amount equal to the product of (a) 0.125% times (y) the average daily amount available for drawing under all outstanding Letters of Credit. Subject to Section 11.9 hereof, such fee shall be computed on the basis of a 360-day year for the actual number of days elapsed. (iii) Administrative Fee. Subject to Section 11.9 hereof, the Borrower shall pay, with respect to each amendment, renewal or transfer of each Letter of Credit and each drawing made thereunder, reasonable documentary and processing charges in accordance with the Issuing Bank's standard schedule for such charges in effect at the time of such amendment, renewal, transfer or drawing, as the case may be. (g) L/C Cash Collateral Account. (i) Upon the occurrence of an Event of Default and demand by the Administrative Agent pursuant to Section 8.2(c) (except in the case of an Event of Default specified in Section 8.1(f) or (g) hereof, to the extent permitted by applicable law, without any demand or taking of any other action by the Administrative Agent or any Lender), the Borrower will promptly pay to the Administrative Agent in immediately available funds an amount equal to the maximum amount then available to be drawn under the Letters of Credit then outstanding. Any amounts so received by the Administrative Agent shall be deposited by the Administrative Agent in a deposit account maintained by the Issuing Bank (the "L/C Cash Collateral Account"). (ii) As security for the payment of all Reimbursement Obligations and for any other Obligations, the Borrower hereby grants, conveys, assigns, pledges, sets over and transfers to the Administrative Agent (for the benefit of the Issuing Bank and Lenders), and 40 41 creates in the Administrative Agent's favor (for the benefit of the Issuing Bank and Lenders) a Lien in, all money, instruments and securities at any time held in or acquired in connection with the L/C Cash Collateral Account, together with all proceeds thereof. The L/C Cash Collateral Account shall be under the sole dominion and control of the Administrative Agent and the Borrower shall have no right to withdraw or to cause the Administrative Agent to withdraw any funds deposited in the L/C Cash Collateral Account. At any time and from time to time, upon the Administrative Agent's request, the Borrower promptly shall execute and deliver any and all such further instruments and documents, including UCC financing statements, as may be necessary, appropriate or desirable in the Administrative Agent's judgment to obtain the full benefits (including perfection and priority) of the security interest created or intended to be created by this paragraph (ii) and of the rights and powers herein granted. The Borrower shall not create or suffer to exist any Lien on any amounts or investments held in the L/C Cash Collateral Account other than the Lien granted under this paragraph (ii). (iii) The Administrative Agent shall (A) apply any funds in the L/C Cash Collateral Account on account of Reimbursement Obligations when the same become due and payable, (B) after the Revolving Commitment Maturity Date, apply any proceeds remaining in the L/C Cash Collateral Account first to pay any unpaid Obligations then outstanding hereunder and then to refund any remaining amount to the Borrower. (iv) The Borrower, no more than once in any calendar month, may direct the Administrative Agent to invest the funds held in the L/C Cash Collateral Account (so long as the aggregate amount of such funds exceeds any relevant minimum investment requirement) in (A) Cash and Cash Equivalents or direct obligations of the United States or any agency thereof, or obligations guaranteed by the United States or any agency thereof, (B) one or more other types of investments permitted by the Determining Lenders, in each case with such maturities as the Borrower, with the consent of the Determining Lenders, may specify, or (C) any combination of the investments described in clause (A) and (B) above, pending application of such funds on account of Reimbursement Obligations or on account of other Obligations, as the case may be. In the absence of any such direction from the Borrower, the Administrative Agent shall invest the funds held in the L/C Cash Collateral Account (so long as the aggregate amount of such funds exceeds any relevant minimum investment requirement) in one or more types of investments with the consent of the Determining Lenders with such maturities as the Borrower, with the consent of the Determining Lenders, may specify, pending application of such funds on account of Reimbursement Obligations or on account of other Obligations, as the case may be. All such investments shall be made in the Administrative Agent's name for the account of the Lenders, subject to the ownership interest therein of the Borrower. The Borrower recognizes that any losses or taxes with respect to such investments shall be borne solely by the Borrower, and the Borrower agrees to hold the Administrative Agent and the Lenders harmless from any and all such losses and taxes, except to the extent that such losses or taxes are finally judicially determined by a court of competent jurisdiction to be the result of gross negligence 41 42 or wilful misconduct of the Administrative Agent. Administrative Agent may liquidate any investment held in the L/C Cash Collateral Account in order to apply the proceeds of such investment on account of the Reimbursement Obligations as provided in Section 2.15(g)(iii) hereof (or on account of any other Obligation then due and payable, as the case may be) without regard to whether such investment has matured and without liability for any penalty or other fee incurred (with respect to which the Borrower hereby agrees to reimburse the Administrative Agent) as a result of such application; provided, that the Administrative Agent shall use its best efforts to first liquidate such investments, if any, which will not result in any penalty or other fee to the Borrower. (v) After the establishment of the L/C Cash Collateral Account pursuant to Section 2.15(g)(i) hereof, the Borrower shall pay to the Administrative Agent the fees customarily charged by the Issuing Bank with respect to the maintenance of accounts similar to the L/C Cash Collateral Account. (vi) At such time as no Event of Default is in existence, the Administrative Agent shall return any amount remaining in the L/C Cash Collateral Account to the Borrower. ARTICLE 3 Conditions Precedent Section 3.1 Conditions Precedent to the Initial Advances and the Initial Letters of Credit. The obligation of each Lender to make the initial Advance and the obligation of the Issuing Bank to issue the initial Letter of Credit is subject to (i) receipt by the Administrative Agent of the following items which are to be delivered, in form and substance reasonably satisfactory to each Lender, with a copy (except for the Notes and this Agreement) for each Lender, and (ii) satisfaction of the following conditions which are to be satisfied: (a) A loan certificate of each Obligor certifying as to the accuracy, in all material respects, of its representations and warranties in the Loan Documents, certifying, in the case of any such Obligor, that no Default or Event of Default has occurred, and including a certificate of incumbency with respect to each Authorized Signatory, and including (i) a copy of the articles or certificate of incorporation or other organizational documents of such Obligor, certified to be true, complete and correct by the secretary of state of its state of organization, (ii) a copy of a certificate of good standing and a certificate of existence for its state of organization and, in the case of any such Obligor, each state in which it is qualified to do business, (iii) a copy of such Obligor's bylaws, partnership agreement or similar document, certified to be true, complete and correct by its secretary or general partner, as the case may be, and (iv) a copy of corporate or similar resolutions authorizing the execution, delivery and performance of the Loan Documents to be executed by such Obligor; 42 43 (b) a duly executed Revolving Credit Note and Term Loan Note payable to the order of each Lender and in an amount for each Lender equal to its Specified Percentage of each Commitment, respectively; (c) UCC searches in appropriate jurisdictions with respect to the Borrower, its property(ies) and its business(es); (d) opinions of counsel to each Obligor addressed to the Lenders and in form and substance satisfactory to the Lenders, dated the Agreement Date, and covering certain of the matters set forth in Sections 4.1(a), (b), (c), (h), (m), (n) and (p) and such other matters incident to the transactions contemplated hereby as the Administrative Agent or Special Counsel may reasonably request; (e) reimbursement for the Administrative Agent for Special Counsel's reasonable and customary fees (on an hourly basis) and expenses rendered through the date hereof, to the extent invoiced on or prior to the Agreement Date; (f) evidence that all proceedings of each Obligor taken in connection with the transactions contemplated by this Agreement and the other Loan Documents shall be reasonably satisfactory in form and substance to the Lenders and Special Counsel; and the Lenders shall have received copies of all documents or other evidence which the Administrative Agent, Special Counsel or any Lender may reasonably request in connection with such transactions; (g) any fees or expenses required to be paid pursuant to the Fee Letters; (h) simultaneously with the making of the initial Advance, executed UCC-3 Termination Statements to be filed in appropriate jurisdictions to terminate all Liens against the Borrower and its Subsidiaries other than Permitted Liens (or written agreements from each holder of such Liens to promptly execute such Termination Statements); (i) all Netcom Recapitalization Documents, which shall be in substance and form reasonably satisfactory to the Determining Lenders; (j) consummation of the Netcom Recapitalization shall simultaneously occur on terms and conditions set forth in the Netcom Recapitalization Documents; (k) evidence satisfactory to the Administrative Agent that (i) the Netcom Convertible Preferred Stock has been issued and the Borrower has received at least $48,268,400 in gross proceeds thereof, and (ii) the Netcom Redeemable Preferred Stock has been issued and the Borrower has received at least $48,268,400 in gross proceeds thereof; 43 44 (l) a pro forma balance sheet of the Borrower and its Subsidiaries taking into account the Netcom Recapitalization and such other information relating to the Netcom Recapitalization as the Determining Lenders may require; (m) the Administrative Agent shall have received an opinion from Houlihan Lokey Howard & Zukin Financial Advisors, Inc., addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent; and (n) in form and substance reasonably satisfactory to the Lenders and Special Counsel, such other documents, instruments and certificates as the Administrative Agent or any Lender may reasonably require in connection with the transactions contemplated hereby, including without limitation, evidence of the status, organization or authority of the Borrower or any Subsidiary of the Borrower, and the enforceability of the Obligations. Section 3.2 Conditions Precedent to All Advances and Letters of Credit. The obligation of each Lender to make each Advance hereunder (including the initial Advance) and the obligation of the Issuing Bank to issue each Letter of Credit (including the initial Letter of Credit) is subject to fulfillment of the following conditions immediately prior to or contemporaneously with each such Advance or issuance: (a) With respect to each Advance and each issuance of a Letter of Credit, all of the representations and warranties of the Borrower under this Agreement, which, pursuant to Section 4.2 hereof, are made at and as of the time of each such Advance or issuance, shall be true and correct in all material respects, both before and after giving effect to the application of the proceeds of the Advance or Letter of Credit. (b) The incumbency of the Authorized Signatories shall be as stated in the certificate of incumbency delivered in the Borrower's loan certificate pursuant to Section 3.1(a) or as subsequently modified and reflected in a certificate of incumbency delivered to the Administrative Agent. The Lenders may, without waiving this condition, consider it fulfilled and a representation by the Borrower made to such effect if no written notice to the contrary, dated on or before the date of such Advance or Letter of Credit, is received by the Administrative Agent from the Borrower prior to the making of such Advance or issuance of such Letter of Credit; (c) There shall not exist a Default or Event of Default hereunder; (d) The aggregate Advances and Letters of Credit, after giving effect to such proposed Advance or Letter of Credit, shall not exceed the maximum principal amount then permitted to be outstanding hereunder; (e) No order, judgment, injunction or decree of any Tribunal shall purport to enjoin or restrain any Lender or the Issuing Bank from making any Advance or issuing any Letter of Credit; 44 45 (f) There shall be no Litigation pending against, or, to the Borrower's current actual knowledge, threatened against the Borrower or any of its Restricted Subsidiaries, or in any other manner relating directly and adversely to the Borrower or any of its Restricted Subsidiaries, or any of their respective properties, in any court or before any arbitrator of any kind or before or by any governmental body which could reasonably be expected to have a Material Adverse Effect; and (g) There shall have occurred no material adverse change in the business, assets, condition (financial or otherwise), results of operations or business of the Borrower and its Restricted Subsidiaries, taken as a whole, since July 31, 1997 (but after giving effect to the Netcom Recapitalization). Notwithstanding the above, the obligation of each Lender to make a Revolving Credit Advance pursuant to Section 2.15(c) shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, (i) the occurrence of any Default or Event of Default, (ii) the failure of the Borrower to satisfy any condition set forth in this Section 3.2, or (iii) any other circumstance, happening or event whatsoever. Section 3.3 Conditions Precedent to Conversions and Continuations. The obligation of the Lenders to convert any existing Base Rate Advance into a LIBOR Advance or to continue any existing LIBOR Advance is subject to the condition precedent that on the date of such conversion or continuation no Event of Default shall have occurred and be continuing or would result from the making of such conversion or continuation. The acceptance of the benefits of each such conversion and continuation shall constitute a representation and warranty by the Borrower to each of the Lenders that no Event of Default shall have occurred and be continuing or would result from the making of such conversion or continuation. ARTICLE 4 Representations and Warranties Section 4.1 Representations and Warranties. The Borrower hereby represents and warrants to each Lender as follows: (a) Organization; Power; Qualification. As of the Agreement Date, the respective jurisdiction of organization or incorporation and percentage ownership by the Borrower of the Subsidiaries listed on Schedule 4 are true and correct. As of the Agreement Date, Schedule 4 is a complete and accurate listing (after giving effect to the Netcom Recapitalization), showing with respect to the Borrower and each Subsidiary of the Borrower (a) its mailing address, which is its principal place of business, (b) the classes of its Equity Interests and the number of amount of its Equity Interests authorized and outstanding, (c) each record and beneficial owner of its outstanding Equity Interests, and (d) all outstanding options, rights, rights of conversion, redemption, purchase or repurchase, rights of first refusal and similar rights relating to the Equity Interests. All of the 45 46 outstanding Equity Interests of the Borrower and each Restricted Subsidiary of the Borrower is validly issued, fully paid and non-assessable. Each of the Borrower and its Restricted Subsidiaries is a corporation or other legal Person duly organized, validly existing and in good standing under the laws of its state of incorporation or organization. Each of the Borrower and its Restricted Subsidiaries has the legal power and authority to own its properties and to carry on its business as now being and hereafter proposed to be conducted. Each of the Borrower and its Restricted Subsidiaries is authorized to do business, duly qualified and in good standing in the jurisdiction as set forth in Schedule 7 and no qualification or authorization is necessary in any other jurisdictions in which the character of its properties or the nature of its business requires such qualification or authorization, except where the failure to be so qualified or authorized would not reasonably be expected to have a Material Adverse Effect. (b) Authorization. The Borrower has legal power and has taken all necessary legal action to authorize it to borrow and request Letters of Credit hereunder. Each of the Borrower and its Restricted Subsidiaries has legal power and has taken all necessary legal action to execute, deliver and perform the Loan Documents to which it is party in accordance with the terms thereof, and to consummate the transactions contemplated thereby. Each Loan Document has been duly executed and delivered by the Borrower or the Restricted Subsidiary of the Borrower executing it. Each of the Loan Documents to which the Borrower or any of its Restricted Subsidiaries is a party is a legal, valid and binding obligation of the Borrower or such Restricted Subsidiary, as applicable, enforceable in accordance with its terms, subject, to enforcement of remedies, to the following qualifications: (i) equitable principles generally, and (ii) Debtor Relief Laws (insofar as any such law relates to the bankruptcy, insolvency or similar event of the Borrower or any Restricted Subsidiary of the Borrower). (c) Compliance with Other Loan Documents and Contemplated Transactions. The execution, delivery and performance by the Borrower and its Restricted Subsidiaries of the Loan Documents to which each is a party, and the consummation of the transactions contemplated thereby, do not and will not (i) require any consent or approval necessary on or prior to the Agreement Date not already obtained, (ii) violate any Applicable Law, (iii) conflict with, result in a breach of, or constitute a default under the certificate of incorporation or by-laws or other applicable organizational documents of the Borrower or any Restricted Subsidiary of the Borrower, (iv) conflict with, result in a breach of, or constitute a default under any Necessary Authorization, indenture, agreement or other instrument, to which the Borrower or any Restricted Subsidiary of the Borrower is a party or by which they or their respective properties may be bound, the effect of which would reasonably be expected to have a Material Adverse Effect, or (v) result in or require the creation or imposition of any Lien (other than Liens in favor of the Lenders to secure the Obligations hereunder) upon or with respect to any property now owned or hereafter acquired by the Borrower or any Restricted Subsidiary of the Borrower. (d) Business. The Borrower and its Restricted Subsidiaries are engaged primarily in the businesses of the development, manufacturing, sale and distribution of network equipment and testing instrumentation and activities reasonably related or incidental thereto. 46 47 (e) Licenses, etc. All Necessary Authorizations have been duly obtained, and are in full force and effect without any known conflict with the rights of others and free from any unduly burdensome restrictions, unless the failure to obtain or have in effect such Necessary Authorizations would not reasonably be expected to result in a Material Adverse Effect. The Borrower and its Subsidiaries are and will continue to be in compliance with all provisions thereof, except to the extent that any such failure to comply would not reasonably be expected to have a Material Adverse Effect. No circumstance exists which would reasonably be expected to impair the utility of the Necessary Authorization or the right to renew such Necessary Authorization the effect of which could reasonably be expected to have a Material Adverse Effect. No Necessary Authorization is the subject of any pending or, to the best of the knowledge of the Senior Officers of Borrower, threatened challenge, suspension, cancellation or revocation, the effect of which would reasonably be expected to have a Material Adverse Effect. (f) Compliance with Law. The Borrower and its Restricted Subsidiaries are in compliance in all respects with all Applicable Laws, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect. (g) Title to Properties. The Borrower and its Restricted Subsidiaries have good title to, or a valid leasehold or subleasehold interest in, all of their material assets. None of their assets are subject to any Liens, except Permitted Liens. No financing statement or other Lien filing (except relating to Permitted Liens) is on file in any state or jurisdiction that names the Borrower or any of its Restricted Subsidiaries as debtor or covers (or purports to cover) any assets of the Borrower or any of its Restricted Subsidiaries. The Borrower and its Restricted Subsidiaries have not signed any such financing statement or filing, nor any security agreement authorizing any Person to file any such financing statement or filing (except relating to Permitted Liens). (h) Litigation. Except as reflected on Schedule 3 hereto, as of the Agreement Date, there is no Litigation pending against, or, to the current actual knowledge of Borrower's Senior Officers, threatened against the Borrower or any of its Restricted Subsidiaries, or in any other manner relating directly and adversely to the Borrower or any of its Restricted Subsidiaries, or any of their respective properties, in any court or before any arbitrator of any kind or before or by any governmental body in which the amount claimed in an aggregate amount (excluding liabilities for which credit worthy insurance companies have acknowledged coverage) exceeds $1,000,000. (i) Taxes. All federal, material state and other material tax returns of the Borrower and its Subsidiaries required by law to be filed have been duly filed, or extensions have been timely filed, and all material Taxes shown to be due and payable on such returns, have been paid prior to the time when any penalties would attach thereto, unless the same are being diligently contested in accordance with Section 5.6 hereof. The charges, accruals and reserves on the books of the Borrower and its Restricted Subsidiaries in respect of their Taxes are, in the reasonable judgment of the Borrower, adequate. (j) Financial Statements; Material Liabilities. 47 48 (i) The Borrower has heretofore delivered to Lenders the audited balance sheets of the Borrower and its Subsidiaries as at July 31, 1997, and the related statements of earnings and changes in shareholders' equity and statement of cash flows for the twelve-month period then ended. Such financial statements were prepared in conformity with GAAP (other than as set forth in the respective audit reports attached thereto) and fairly present, in all material respects, the financial position of the Borrower and its Subsidiaries as at the date thereof and the combined results of operations and cash flows for the periods covered thereby. (ii) The projected financial statements of the Borrower and its Subsidiaries delivered to the Lenders prior to or on the Agreement Date (taking into effect the Netcom Recapitalization) are based on good faith estimates and assumptions made by the management of the Borrower and believed to be reasonable at the time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ in material respects from the projected results. (iii) The financial statements of the Borrower and its Restricted Subsidiaries delivered to the Lenders pursuant to Sections 6.1, 6.2 and 6.3 hereof fairly present in all material respects their respective financial condition and their respective results of operations as of the dates and for the periods shown, all in accordance with GAAP, subject, with respect to the financial statements delivered pursuant to Section 6.1 and 6.2 hereof, to normal year-end adjustments and the absence of footnotes. The latest of such financial statements reflects all material liabilities, direct and contingent, of the Borrower and each Restricted Subsidiary of the Borrower that are required to be disclosed in accordance with GAAP, subject, with respect to the financial statements delivered pursuant to Section 6.1 and 6.2 hereof, the absence of footnotes and appropriate year-end adjustments. (k) No Adverse Change. There has occurred no material adverse change in the business, assets, condition (financial or otherwise), results of operations or business of the Borrower and its Restricted Subsidiaries, taken as a whole, since July 31, 1997 (but after giving effect to the Netcom Recapitalization). (l) ERISA. None of the Borrower or its Controlled Group maintains, contributes to or has any liability with respect to any Plan subject to Title IV of ERISA. Each such Plan (other than any Multiemployer Plan) is in compliance in all material respects with the applicable provisions of ERISA, the Code, and any other applicable Law, except to the extent that failure to so comply would not reasonably be expected to have a Material Adverse Effect. With respect to each Plan (other than any Multiemployer Plan) of the Borrower and each member of its Controlled Group, all reports required under ERISA or any other Applicable Law to be filed with any Tribunal, the failure of which to file could reasonably be expected to result in liability of the Borrower or any member of its Controlled Group in excess of $500,000, have been duly filed. All such reports are true and correct in all material respects as of the date given. No Plan of the Borrower or any member of its 48 49 Controlled Group has been terminated under Section 4041(c) of ERISA nor has any accumulated funding deficiency (as defined in Section 412(a) of the Code) been incurred (without regard to any waiver granted under Section 412 of the Code), nor has any funding waiver from the Internal Revenue Service been received or requested, the result of which would reasonably be expected to have a Material Adverse Effect. None of the Borrower or any member of its Controlled Group has failed to make any contribution or pay any amount due or owing as required under the terms of any such Plan, or by Section 412 of the Code or Section 302 of ERISA by the due date under Section 412 of the Code and Section 302 of ERISA, the result of which would reasonably be expected to have a Material Adverse Effect. There has been no ERISA Event or any event requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any Plan or its related trust of the Borrower or any member of its Controlled Group since the effective date of ERISA, the result of which would reasonably be expected to have a Material Adverse Effect. The present value of the benefit liabilities, as defined in Title IV of ERISA, of each Plan subject to Title IV of ERISA (other than a Multiemployer Plan) of the Borrower and each member of its Controlled Group does not exceed by more than $500,000 the present value of the assets of each such Plan as of the most recent valuation date using each such Plan's actuarial assumptions at such date. There are no pending, or to the Borrower's knowledge threatened, claims, lawsuits or actions (other than routine claims for benefits in the ordinary course) asserted or instituted against, and neither the Borrower nor any member of its Controlled Group has knowledge of any threatened litigation or claims against, the assets of any Plan or its related trust or against any fiduciary of a Plan with respect to the operation of such Plan, the result of which would reasonably be expected to have a Material Adverse Effect. None of the Borrower or, to the Borrower's knowledge, any member of its Controlled Group has engaged in any prohibited transactions, within the meaning of Section 406 of ERISA or Section 4975 of the Code, in connection with any Plan the result of which would reasonably be expected to have a Material Adverse Effect. None of the Borrower or any member of its Controlled Group has withdrawn from any Multiemployer Plan, nor has incurred or reasonably expects to incur (A) any liability under Title IV of ERISA (other than premiums due under Section 4007 of ERISA to the PBGC), (B) any withdrawal liability (and no event has occurred which with the giving of notice under Section 4219 of ERISA would result in such liability) under Section 4201 of ERISA as a result of a complete or partial withdrawal (within the meaning of Section 4203 or 4205 of ERISA) from a Multiemployer Plan, or (C) any liability under Section 4062 of ERISA to the PBGC or to a trustee appointed under Section 4042 of ERISA, the result of which would reasonably be expected to have a Material Adverse Effect. None of the Borrower, any member of its Controlled Group, or any organization to which the Borrower or any member of its Controlled Group is a successor or parent corporation within the meaning of ERISA Section 4069(b), has engaged in a transaction within the meaning of ERISA Section 4069, the result of which would reasonably be expected to have a Material Adverse Effect. None of the Borrower or any member of its Controlled Group maintains or has established any Plan (other than a Multiemployer Plan) which is a welfare benefit plan within the meaning of Section 3(1) of ERISA and which provides for continuing benefits or coverage for any participant or any beneficiary of any participant after such participant's termination of employment, except as may be required by any Applicable Law, the result of which would reasonably be expected to have a Material Adverse Effect. Each of Borrower and its Controlled Group which maintains a Plan which is a welfare benefit plan within the meaning of Section 3(1) 49 50 of ERISA has complied in all material respects with any applicable notice and continuation requirements of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations thereunder. None of the Borrower or any member of its Controlled Group maintains or has established a multiemployer welfare benefit arrangement within the meaning of Section 3(40)(A) of ERISA. (m) Compliance with Regulations G, T, U and X. The Borrower is not engaged principally or as one of its important activities in the business of extending credit for the purpose of purchasing or carrying any margin stock within the meaning of Regulations G, T, U and X of the Board of Governors of the Federal Reserve System, and no part of the proceeds of the Advances or Letters of Credit will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock in any manner which might cause the borrowing of any Advances or the application of any proceeds thereof to violate Regulations G, T, U and X of the Board of Governors of the Federal Reserve System. No more than 25% of the assets of the Borrower and its Restricted Subsidiaries consist of margin stock. (n) Required Consents. The Borrower and its Restricted Subsidiaries are not required to obtain any material Necessary Authorization on or prior to the Agreement Date that has not already been obtained from, or effect any material filing or registration that has not already been effected with, any Tribunal in connection with the execution and delivery of this Agreement or any other Loan Document, or the performance thereof, in accordance with their respective terms, including any borrowings hereunder. (o) Absence of Default. The Borrower and its Restricted Subsidiaries are in compliance in all material respects with all of the provisions of their respective certificates of incorporation, by-laws and other organizational documents, and no event has occurred or failed to occur, which has not been remedied or waived, the occurrence or non-occurrence of which constitutes, or which with the passage of time or giving of notice or both would constitute, (i) an Event of Default or (ii) a default by the Borrower or any of its Restricted Subsidiaries under any indenture, agreement or other instrument, or any judgment, decree or order to which the Borrower or any of its Restricted Subsidiaries or by which they or any of their respective properties is bound, the result of which with respect to any default set forth in clause (ii) would reasonably be expected to have a Material Adverse Effect. (p) Governmental Regulation. Neither the Borrower nor any of its Restricted Subsidiaries is subject to regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce Act or the Investment Company Act of 1940. Neither the entering into or performance by the Borrower of this Agreement nor the issuance of the Notes violates any provision of such act or requires any consent, approval, or authorization of, or registration with, the Securities and Exchange Commission or any other Tribunal pursuant to any provisions of such act. 50 51 (q) Environmental Matters. No substance deemed hazardous by any Applicable Environmental Law, has been placed (i) on any real property fee title to which is now owned by the Borrower or any of its Restricted Subsidiaries or (ii) by Borrower or any of its Restricted Subsidiaries on any real property leased by the Borrower or any of its Restricted Subsidiaries, in either case in a manner which does not comply with Applicable Environmental Laws, except to the extent that the failure to so comply would not reasonably be expected to have a Material Adverse Effect. The Borrower and its Restricted Subsidiaries are not in violation of or subject to any existing, pending or, to the best knowledge of the Borrower's Senior Officers, threatened investigation or inquiry by any Tribunal or to any remedial obligations under any Applicable Environmental Laws, the effect of which would reasonably be expected to have a Material Adverse Effect. The Borrower and its Restricted Subsidiaries have not failed to obtain any permits, licenses or similar authorizations (other than certificates of occupancy and building permits and other authorizations required to construct, occupy, operate or use any buildings, improvements, fixtures, and equipment forming a part of any real property owned or leased by the Borrower or any Restricted Subsidiary of the Borrower) that are required by any Applicable Environmental Laws, except to the extent that the failure to so obtain would not reasonably be expected to have a Material Adverse Effect. No hazardous substances or solid wastes have been disposed of or otherwise released (i) on or to the real property fee title to which is owned by the Borrower or any of its Restricted Subsidiaries or (ii) by Borrower or any of its Restricted Subsidiaries on or to any real property leased by Borrower or any of its Restricted Subsidiaries, all within the meaning of the Applicable Environmental Laws, the effect of which would reasonably be expected to have a Material Adverse Effect. (r) Certain Fees. Except for fees and expenses incurred in connection with the Netcom Recapitalization, no broker's, finder's or other fee or commission will be payable by the Borrower (other than to the Lenders hereunder) with respect to the making of the Commitments or the Advances hereunder. The Borrower agrees to indemnify and hold harmless the Administrative Agent and each Lender from and against any claims, demand, liability, proceedings, costs or expenses asserted with respect to or arising in connection with any such fees or commissions, including those related to the Netcom Recapitalization. (s) Patents, Etc. The Borrower and its Restricted Subsidiaries have collectively obtained or applied for or licensed or otherwise obtained the right to use all patents, trademarks, service marks, trade names, copyrights, and other rights, free from Liens (except Permitted Liens), that are necessary for the operation of their business as presently conducted and as proposed to be conducted, except to the extent that the failure to so obtain, apply, license or obtain the right to use would not reasonably be expected to have a Material Adverse Effect. Nothing has come to the knowledge of Senior Officers of the Borrower or any of its Restricted Subsidiaries to the effect that (i) any process, method, part or other material presently contemplated to be employed by the Borrower or any Restricted Subsidiary of the Borrower infringes any valid and enforceable patent, trademark, service mark, trade name, copyright, license or other right owned by any other Person, or (ii) there is pending or overtly threatened any claim or litigation against or affecting the Borrower or any Restricted 51 52 Subsidiary of the Borrower contesting its right to sell or use any such process, method, part or other material, which would reasonably be expected to have a Material Adverse Effect. (t) Disclosure. All factual information furnished by the Borrower or any of its Restricted Subsidiaries in writing to the Administrative Agent or any Lender in connection with this Agreement or the other Loan Documents is, and all other such factual information hereafter furnished by or on behalf of the Borrower or any of its Restricted Subsidiaries in writing to the Administrative Agent or any Lender in connection with this Agreement will be, true and accurate in all material respects on the date as of which such information is dated or certified and not incomplete by omitting to state any material fact necessary to make such information not misleading at such time in light of the circumstances under which such information was provided; provided, however, the Lenders acknowledge that financial projections and budgets are based on good faith estimates and assumptions made by the management of the Borrower at the time made, it being recognized by the Lenders that projections and budgets as to future events are not to be viewed as facts and that actual results during the period or periods covered by such projections and budgets may differ in material respects from the projected results. There is no fact known to any of the Senior Officers of the Borrower and not known to the public generally that would reasonably be expected to have a Material Adverse Effect, which has not been set forth in this Agreement or in the documents, certificates and statements furnished to the Lenders by or on behalf of the Borrower in connection with the transactions contemplated hereby. (u) Solvency. The Borrower is, and Borrower and its Subsidiaries on a consolidated basis are, Solvent. (v) Labor Relations. Except as provided on Schedule 8, neither the Borrower nor any Restricted Subsidiary is a party to a collective bargaining agreement or similar agreement, and the Borrower and each Restricted Subsidiary is in compliance in all material respects with all Laws respecting employment and employment practices, terms and conditions of employment, wages and hours and other laws related to the employment of its employees, except where the failure to comply would not reasonably be expected to result in a Material Adverse Effect, and there are no arrears in the payment of wages, withholding or social security taxes, unemployment insurance premiums or other similar obligations of the Borrower or any Restricted Subsidiary or for which the Borrower or any Restricted Subsidiary may be responsible other than in the ordinary course of business, except for such unpaid or unwithheld arrears which would not reasonably be expected to result in a Material Adverse Effect. There is no strike, work stoppage or labor dispute with any union or group of employees pending or overtly threatened involving Borrower or any Restricted Subsidiary that would reasonably be expected to have a Material Adverse Effect. (w) Common Enterprise. The operations of the Borrower and its Restricted Subsidiaries require financing on a basis such that the credit supplied can be made available from time to time to the Borrower and various of the Restricted Subsidiaries, as required for the continued successful operation of the Borrower and its Restricted Subsidiaries as a whole. The Borrower and its Restricted Subsidiaries expect to derive benefit (and the boards of directors of the Borrower and its 52 53 Restricted Subsidiaries have determined that the Borrower and the Restricted Subsidiaries may reasonably be expected to derive benefit), directly or indirectly, from the credit extended by Lenders hereunder, both in their separate capacities and as members of the group of companies, since the successful operation and condition of the Borrower and its Restricted Subsidiaries is dependent on the continued successful performance of the functions of the group as a whole. Section 4.2 Survival of Representations and Warranties, etc. All representations and warranties made under this Agreement and the other Loan Documents shall be deemed to be made at and as of the Agreement Date and at and as of the date of each Advance and the date of issuance of each Letter of Credit, and each shall be true and correct in all material respects when made, except to the extent (a) previously fulfilled in accordance with the terms hereof, (b) previously waived in writing by the Determining Lenders with respect to any particular factual circumstance or permitted by the terms of this Agreement or (c) such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such date. All such representations and warranties shall survive, and not be waived by, the execution hereof by any Lender, any investigation or inquiry by any Lender, or by the making of any Advance or the issuance of any Letter of Credit under this Agreement. ARTICLE 5 General Covenants So long as any of the Obligations (other than contingent indemnity Obligations which expressly survive the termination of this Agreement) are outstanding and unpaid or any Commitment is outstanding (whether or not the conditions to borrowing have been or can be fulfilled): Section 5.1 Preservation of Existence and Similar Matters. The Borrower shall, and shall cause each Restricted Subsidiary of the Borrower to: (a) except as otherwise permitted pursuant to Section 7.4 hereof, preserve and maintain, or timely obtain and thereafter preserve and maintain, its existence, rights, franchises, licenses, authorizations, consents, privileges and all other Necessary Authorizations from any Tribunal, the loss of which would reasonably be expected to have a Material Adverse Effect; and (b) except as otherwise permitted pursuant to Section 7.4 hereof, qualify and remain qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification or authorization, unless the failure to do so would not reasonably be expected to have a Material Adverse Effect. Section 5.2 Business; Compliance with Applicable Law. The Borrower and its Restricted Subsidiaries shall (a) engage primarily in the businesses set forth in Section 4.1(d) hereof and those 53 54 businesses reasonably related or incidental thereto, and (b) comply in all respects with the requirements of all Applicable Law, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect. Section 5.3 Maintenance of Properties. The Borrower shall, and shall cause each Restricted Subsidiary of the Borrower to, maintain or cause to be maintained all its properties (whether owned or held under lease) in adequate operating condition and repair for purposes of their current use with due regard to the age thereof, taken as a whole, subject to ordinary wear and tear, and from time to time make or cause to be made all appropriate (in the reasonable judgment of the Borrower) repairs, renewals, replacements, additions, betterments and improvements thereto in accordance with past practice, except where the failure to so maintain, repair, renew, replace or improve would not reasonably be expected to have a Material Adverse Effect. Section 5.4 Accounting Methods and Financial Records. The Borrower shall, and shall cause each Restricted Subsidiary of the Borrower to, maintain a system of accounting established and administered in accordance with GAAP, keep adequate records and books of account in which complete entries will be made and all transactions reflected in accordance with GAAP, and keep accurate and complete records of its respective assets. Section 5.5 Insurance. The Borrower shall, and shall cause each Restricted Subsidiary of the Borrower to, maintain insurance from responsible companies in such amounts and against such risks as shall be customary and usual in the industry for companies of similar size and capability. Section 5.6 Payment of Taxes and Claims. The Borrower shall, and shall cause each Restricted Subsidiary of the Borrower to, pay and discharge all material taxes to which they are subject prior to the date on which penalties attach thereto, and all lawful material claims for labor, materials and supplies which, if unpaid, might by Law become a Lien upon any of its properties; except that no such tax or claim need be paid which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on the appropriate books, but only so long as any Lien related thereto is a Permitted Lien. The Borrower shall, and shall cause each Restricted Subsidiary of the Borrower to, timely file all material information returns (or extensions of such filing deadlines) required by federal, state or local tax authorities. Section 5.7 Visits and Inspections. The Borrower shall, and shall cause each Subsidiary of the Borrower to, promptly permit representatives of the Administrative Agent or any Lender from time to time after reasonable notice by the Administrative Agent or any Lender to (a) visit and inspect the properties of the Borrower and its Restricted Subsidiaries as often as the Administrative Agent or any Lender shall reasonably deem advisable, (b) audit, inspect and make extracts from and copies of the Borrower's and each such Restricted Subsidiary's books and records, and (c) discuss with the Borrower's and each such Restricted Subsidiary's directors, officers, employees and auditors, in the presence of a Senior Officer of the Borrower, its business, assets, liabilities, financial positions and results of operations, provided that such representatives of the Administrative Agent or any 54 55 Lender shall keep confidential all information obtained pursuant to this Section 5.7 to the extent required by Section 11.14. The Borrower shall pay the reasonable out-of-pocket expenses related to inspections and audits performed (a) by, or on behalf of, any initial Lender on any single occasion prior to July 31, 1998, (b) at any time by the Administrative Agent and (c) after the occurrence and during the continuance of an Event of Default by each Lender. Except after the occurrence and during the continuance of an Event of Default, all such visits and inspections shall be conducted during normal business hours. Following the occurrence and during the continuance of an Event of Default, such visits and inspections shall be conducted at any time requested by the Administrative Agent or any Lender without any requirement for reasonable notice. Section 5.8 Use of Proceeds. The proceeds of the Advances shall be used by the Borrower to (a) consummate the Netcom Recapitalization and pay certain outstanding Indebtedness of the Borrower and its Restricted Subsidiaries and trade payables, (b) pay certain fees and expenses related to the Netcom Recapitalization, (c) finance acquisitions and to finance the repurchase of the Netcom Preferred Stock, in each case to the extent permitted hereunder, and (d) finance the ongoing working capital and general corporate requirements of the Borrower and its Restricted Subsidiaries. SECTION 5.9 INDEMNITY. (a) THE BORROWER AGREES TO DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS THE ADMINISTRATIVE AGENT, EACH LENDER, EACH OF THEIR RESPECTIVE AFFILIATES, AND EACH OF THEIR RESPECTIVE (INCLUDING SUCH AFFILIATES') OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, SHAREHOLDERS AND CONSULTANTS (INCLUDING, WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION WITH THE SATISFACTION OR ATTEMPTED SATISFACTION OF ANY OF THE CONDITIONS SET FORTH HEREIN) OF EACH OF THE FOREGOING (COLLECTIVELY, "INDEMNITEES") FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, REASONABLE COSTS, REASONABLE OUT-OF-POCKET EXPENSES AND REASONABLE DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THE REASONABLE FEES AND DISBURSEMENTS OF COUNSEL FOR SUCH INDEMNITEES IN CONNECTION WITH ANY INVESTIGATIVE, ADMINISTRATIVE OR JUDICIAL PROCEEDING, WHETHER OR NOT SUCH INDEMNITEES SHALL BE DESIGNATED A PARTY THERETO), IMPOSED ON, INCURRED BY, OR ASSERTED AGAINST SUCH INDEMNITEES (WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL AND WHETHER BASED ON ANY FEDERAL, STATE, OR LOCAL LAWS AND REGULATIONS, UNDER COMMON LAW OR AT EQUITABLE CAUSE, OR ON CONTRACT, TORT OR OTHERWISE, ARISING FROM OR CONNECTED WITH THE PAST, PRESENT OR FUTURE OPERATIONS OF THE BORROWER OR ANY SUBSIDIARY OF THE BORROWER OR THEIR RESPECTIVE PREDECESSORS IN INTEREST, OR THE PAST, PRESENT OR FUTURE ENVIRONMENTAL CONDITION OF PROPERTY OF THE BORROWER OR ANY SUBSIDIARY OF THE BORROWER), 55 56 RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY ACT, EVENT OR TRANSACTION OR ALLEGED ACT, EVENT OR TRANSACTION RELATING THERETO, INCLUDING IN CONNECTION WITH, OR AS A RESULT, IN WHOLE OR IN PART, OF ANY ORDINARY NEGLIGENCE OF ADMINISTRATIVE AGENT OR ANY LENDER (OTHER THAN THOSE MATTERS RAISED EXCLUSIVELY BY A PARTICIPANT AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER AND NOT THE BORROWER), OR THE USE OR INTENDED USE OF THE PROCEEDS OF THE ADVANCES OR LETTERS OF CREDIT HEREUNDER, OR IN CONNECTION WITH ANY INVESTIGATION OF ANY POTENTIAL MATTER COVERED HEREBY, BUT EXCLUDING (I) ANY CLAIM OR LIABILITY THAT ARISES AS THE RESULT OF THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF ANY INDEMNITEE, AS FINALLY JUDICIALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION, AND (II) MATTERS RAISED BY ONE LENDER AGAINST ANOTHER LENDER OR BY ANY SHAREHOLDERS OF A LENDER AGAINST A LENDER OR ITS MANAGEMENT (COLLECTIVELY, EXCEPT FOR THE MATTERS REFERRED TO CLAUSES (I) OR (II) ABOVE, "INDEMNIFIED MATTERS", AND THE MATTERS REFERRED TO IN CLAUSES (I) OR (II) ABOVE, COLLECTIVELY, "EXCLUDED MATTERS"). TO THE EXTENT THAT ANY INDEMNIFIED MATTER INVOLVES ONE OR MORE INDEMNITEES, SUCH INDEMNITEES SHALL USE THE SAME LEGAL COUNSEL UNLESS ANY INDEMNITEE IN ITS REASONABLE DISCRETION DETERMINES THAT CONFLICTS EXIST OR MAY ARISE IN CONNECTION WITH SUCH REPRESENTATION. (b) WITHOUT DUPLICATION, THE BORROWER SHALL PERIODICALLY, UPON REQUEST, REIMBURSE EACH INDEMNITEE FOR ITS REASONABLE OUT-OF-POCKET LEGAL AND OTHER ACTUAL REASONABLE EXPENSES (INCLUDING THE REASONABLE COST OF ANY INVESTIGATION AND PREPARATION) INCURRED IN CONNECTION WITH ANY INDEMNIFIED MATTER; PROVIDED, HOWEVER, THAT IF AN INDEMNITEE IS REIMBURSED HEREUNDER FOR SUCH AMOUNT, THE AMOUNT SO PAID SHALL BE REFUNDED TO THE BORROWER IF AND TO THE EXTENT IT IS FINALLY JUDICIALLY DETERMINED THAT THE INDEMNIFIED MATTER IN QUESTION WAS AN EXCLUDED MATTER. THE REIMBURSEMENT, INDEMNITY AND CONTRIBUTION OBLIGATIONS UNDER THIS SECTION SHALL BE IN ADDITION TO ANY LIABILITY WHICH THE BORROWER MAY OTHERWISE HAVE, SHALL EXTEND UPON THE SAME TERMS AND CONDITIONS TO EACH INDEMNITEE, AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY SUCCESSORS, ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF THE BORROWER, THE ADMINISTRATIVE AGENT, THE LENDERS AND ALL OTHER INDEMNITEES. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE OBLIGATIONS. 56 57 Section 5.10 Environmental Law Compliance. The use which the Borrower or any Restricted Subsidiary of the Borrower intends to make of any real property which is owned or leased by it will not result in the disposal or other release of any hazardous substance or solid waste on or to such real property which is in violation of Applicable Environmental Laws, the effect of which would reasonably be expected to have a Material Adverse Effect. As used herein, the terms "hazardous substance" and "release" as used in this Section shall have the meanings specified in CERCLA (as defined in the definition of Applicable Environmental Laws), and the terms "solid waste" and "disposal" shall have the meanings specified in RCRA (as defined in the definition of Applicable Environmental Laws); provided, however, that if CERCLA or RCRA is amended so as to broaden or lessen the meaning of any term defined thereby, such broader or lesser meaning shall apply subsequent to the effective date of such amendment; and provided further, to the extent that any other law applicable to the Borrower, any Restricted Subsidiary or any of their properties establishes a meaning for "hazardous substance," "release," "solid waste," or "disposal" which is broader or lesser than that specified in either CERCLA or RCRA, such broader or lesser meaning shall apply. Section 5.11 Further Assurances. At any time or from time to time upon request by the Administrative Agent, the Borrower or any Restricted Subsidiary of the Borrower shall execute and deliver such further documents and do such other acts and things as the Administrative Agent may reasonably request in order to effect fully the purposes of this Agreement and the other Loan Documents and to provide for payment of the Obligations in accordance with the terms of this Agreement and the other Loan Documents. Without limiting the generality of the foregoing, the Borrower agrees to update and deliver to the Administrative Agent Schedule 4 hereto (with respect to the identities, jurisdictions of incorporation and initial ownership of the Borrower's direct and indirect Subsidiaries) at the time of delivery of the financial statements set forth in Sections 6.2 and 6.3 hereof if the information provided therein is not complete and correct. Section 5.12 Restricted Domestic Subsidiaries. At any time that any Person becomes a Restricted Domestic Subsidiary, (a) such Subsidiary shall execute a Subsidiary Guaranty of the Obligations and (b) the Lenders shall receive such board resolutions, officer's certificates, corporate and other documents and opinions of counsel as the Administrative Agent shall reasonably request in connection with the actions described in clause (a) above. ARTICLE 6 Information Covenants So long as any of the Obligations (other than contingent indemnity Obligations which expressly survive the termination of this Agreement) are outstanding and unpaid or any Commitment is outstanding (whether or not the conditions to borrowing have been or can be fulfilled), the Borrower shall furnish or cause to be furnished to each Lender: 57 58 Section 6.1 Monthly Financials. As soon as available in any event within 30 days after the end of each month prior to July, 1998, monthly financial reports of the Borrower (and its Subsidiaries with which it prepares consolidated financial statements) on a consolidated basis, including a balance sheet as at the end of the preceding calendar month and statements of income and retained earnings and a related statement of cash flows for such month (prepared in accordance with GAAP), such figures for the corresponding month of the preceding fiscal year and comparisons to the budget for such month. Such financial statements shall be certified by the chief financial officer of the Borrower to be (to his knowledge) complete and accurate, to fairly present the financial condition of the Borrower and its Subsidiaries and to be prepared in accordance with GAAP; Section 6.2 Quarterly Financial Statements and Information. Within 60 after the end of each fiscal quarter of each fiscal year (other than the end of a fiscal quarter which coincides with the end of a fiscal year), the consolidated balance sheets of the Borrower and its Restricted Subsidiaries as at the end of such fiscal quarter and the related consolidated statements of income for such fiscal quarter and for the elapsed portion of the year ended with the last day of such fiscal quarter, and consolidated statements of cash flow for the elapsed portion of the year ended with the last day of such fiscal quarter, all of which shall be certified by the chief executive officer, president, chief financial officer, treasurer or other officer of the Borrower acceptable to the Administrative Agent, to, in his or her opinion acting solely in his or her capacity as an officer of the Borrower, present fairly in all material respects, in accordance with GAAP (except for the absence of footnotes), the financial position and results of operations of the Borrower and its Restricted Subsidiaries as at the end of and for such fiscal quarter, and for the elapsed portion of the year ended with the last day of such fiscal quarter, subject only to normal year-end adjustments. Section 6.3 Annual Financial Statements and Information; Certificate of No Default. (a) Within 120 days after the end of each fiscal year, a copy of (i) the consolidated and consolidating balance sheets of the Borrower and its Restricted Subsidiaries, as of the end of the current and prior fiscal years and (ii) the consolidated and consolidating statements of earnings and consolidated statements of changes in shareholders' equity, and statements of cash flow as of and through the end of such fiscal year, all of which are prepared in accordance with GAAP, and, with respect to the consolidated financial statements, certified by independent certified public accountants reasonably acceptable to the Determining Lenders (provided, however, any big six public accounting firm shall be acceptable to the Lenders), whose opinion shall be in scope and substance in accordance with generally accepted auditing standards and shall be unqualified as to scope of audit and going concern. (b) As soon as available, but in any event within 90 days following the end of each fiscal year, a copy of the annual consolidated operating budget of the Borrower and its Subsidiaries for the succeeding fiscal year. Section 6.4 Compliance Certificate. At the time financial statements are furnished pursuant to Sections 6.2 and 6.3 hereof, the Compliance Certificate, completed as provided therein. 58 59 Section 6.5 Copies of Other Reports and Notices. (a) Promptly upon their becoming available, a copy of (i) all reports or letters submitted to the Borrower or any Restricted Subsidiary of the Borrower by accountants in connection with any annual, interim or special audit, including without limitation any report prepared in connection with the annual audit referred to in Section 6.3 hereof, and any other comment letter submitted to management in connection with any such audit, (ii) each regular, periodic or other report and any registration statement (other than statements on Form S-8) or prospectus (or material written communication in respect of any thereof) filed by the Borrower or any Restricted Subsidiary of the Borrower with any securities exchange, with the Securities and Exchange Commission or any successor agency, and (iii) all press releases concerning financial aspects of the Borrower or any Restricted Subsidiary of the Borrower; (b) Promptly upon any Senior Officer of the Borrower becoming aware that (i) the holder(s) of any note(s) or other evidence of indebtedness or other security of the Borrower or any Restricted Subsidiary of the Borrower in excess of $500,000 in the aggregate has given notice or taken any action with respect to a breach, failure to perform, claimed default or event of default thereunder or (ii) any event, circumstance or condition which would reasonably be expected to be classified as a Material Adverse Effect, a written notice specifying the details thereof (or the nature of any claimed default or event of default) and what action is being taken or is proposed to be taken with respect thereto; (c) Promptly upon any Senior Officer of the Borrower becoming aware that any party to any Capitalized Lease Obligations in excess of $500,000 or Operating Lease in which the annual rentals thereunder exceed $250,000, has given notice or taken any action with respect to a breach, failure to perform, claimed default or event of default thereunder, a written notice specifying the details thereof (or the nature of any claimed default or event of default) and what action is being taken or is proposed to be taken with respect thereto; (d) Promptly upon receipt thereof, information with respect to and copies of any notices received from any Tribunal relating to any order, ruling, law, information or policy that relates to a breach of or noncompliance with any Law, and could reasonably be expected to result in the payment of money by the Borrower or any Restricted Subsidiary of the Borrower in an amount of $500,000 or more in the aggregate, or otherwise have a Material Adverse Effect, or result in the loss or suspension of any Necessary Authorization where such loss could reasonably be expected to have a Material Adverse Effect; and (e) From time to time and promptly upon each request, such material data, certificates, reports, statements, documents or further information regarding the assets, business, liabilities, financial position, or results of operations of the Borrower and its Subsidiaries, as the Administrative Agent may reasonably request. 59 60 Section 6.6 Notice of Litigation, Default and Other Matters. Prompt notice of the following events after any Senior Officer of the Borrower has knowledge or notice thereof: (a) The commencement of all Litigation and investigations by or before any Tribunal, and all actions and proceedings in any court or before any arbitrator involving claims for damages (including punitive damages) in excess of $250,000 (after deducting the amount with respect to which creditworthy insurance companies have acknowledged coverage), against or in any other way relating directly to the Borrower, any Restricted Subsidiary of the Borrower, or any of their respective properties or businesses; and (b) Promptly upon the happening of any condition or event of which any Senior Officer of the Borrower has current actual knowledge which constitutes a Default, a written notice specifying the nature and period of existence thereof and what action is being taken or is proposed to be taken with respect thereto. Section 6.7 ERISA Reporting Requirements. (a) Promptly and in any event (i) within 30 days after any Senior Officer of the Borrower or any member of its Controlled Group has current actual knowledge that any ERISA Event described in clause (a) of the definition of ERISA Event or any event described in Section 4063(a) of ERISA with respect to any Plan of the Borrower or any member of its Controlled Group has occurred, and (ii) within 10 days after any Senior Officer of the Borrower or any member of its Controlled Group has current actual knowledge that any other ERISA Event with respect to any Plan of the Borrower or any member of its Controlled Group has occurred or a request for a minimum funding waiver under Section 412 of the Code has been made with respect to any Plan of the Borrower or any member of its Controlled Group, a written notice describing such event and describing what action is being taken or is proposed to be taken with respect thereto, together with a copy of any notice of such event that is given to the PBGC; (b) Promptly and in any event within ten Business Days after receipt thereof directly by the Borrower with respect to any member of its Controlled Group from the PBGC, copies of each notice received by the Borrower or any member of its Controlled Group of the PBGC's intention to terminate any Plan or to have a trustee appointed to administer any Plan; (c) Promptly and in any event within 30 days after request by the Administrative Agent, copies of each annual report (including Schedule B thereto, if applicable) with respect to each Plan subject to Title IV of ERISA of which Borrower or any member of its Controlled Group is the "plan sponsor"; (d) Promptly, and in any event within 10 Business Days after receipt thereof, a copy of any correspondence the Borrower or any member of its Controlled Group receives from the Plan Sponsor (as defined by Section 4001(a)(10) of ERISA) of any Plan concerning potential withdrawal liability pursuant to Section 4219 or 4202 of ERISA, and a statement from the chief financial officer 60 61 of the Borrower or such member of its Controlled Group setting forth details as to the events giving rise to such potential withdrawal liability and the action which the Borrower or such member of its Controlled Group is taking or proposes to take with respect thereto; (e) Notification within 30 days of any material increases in the benefits provided under any existing Plan which is not a Multiemployer Plan, or the establishment of any new Plans, or the commencement of contributions to any Plan to which the Borrower or any member of its Controlled Group was not previously contributing, which could reasonably be expected in any such case to result in an additional material liability to the Borrower; (f) Notification within three Business Days after any Senior Officer of the Borrower or any member of its Controlled Group knows that the Borrower or any such member of its Controlled Group has filed or intends to file a notice of intent to terminate any Plan under a distress termination within the meaning of Section 4041(c) of ERISA and a copy of such notice; and (g) Within three Business Days after receipt of written notice of commencement thereof, notice of all actions, suits and proceedings before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Borrower or any member of its Controlled Group with respect to any Plan, except those which, in the aggregate, if adversely determined could not reasonably be expected to have a Material Adverse Effect. ARTICLE 7 Negative Covenants So long as any of the Obligations (other than contingent indemnity Obligations which expressly survive the termination of this Agreement) are outstanding and unpaid or any Commitment is outstanding (whether or not the conditions to borrowing have been or can be fulfilled): Section 7.1 Indebtedness. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, or suffer to exist any Indebtedness, except: (a) Indebtedness under the Loan Documents; (b) Accounts payable and accrued liabilities incurred in the ordinary course of business; (c) Indebtedness, including in respect of Capitalized Lease Obligations, incurred to purchase or to finance (or to refinance within 90 days after the purchase or lease thereof) the purchase of, capital assets, not to exceed, together with Indebtedness permitted pursuant to clauses (h) and (q) of this Section 7.1, $2,500,000 in the aggregate principal amount outstanding at any one time; 61 62 (d) Institutional Debt (including renewals, replacements and refinancings thereof); provided that the Net Cash Proceeds of such Institutional Debt (and any additional Net Cash Proceeds attributable to all such renewals, replacements and/or refinancings) are applied in accordance with, and to the extent required by, Section 2.5(e) hereof. (e) Hedging obligations under Interest Hedge Agreements entered into with any Lender; (f) Indebtedness existing on the Agreement Date which is described on Schedule 6 hereto, including renewals, replacements and refinancings (but no increases, unless otherwise expressly permitted hereunder) thereof; (g) Indebtedness in respect of endorsement of negotiable instruments in the ordinary course of business; (h) Indebtedness assumed in connection with Acquisitions permitted under Section 7.6 or any other asset or property acquisition permitted hereby not to exceed, together with Indebtedness permitted pursuant to clauses (c) and (q) of this Section 7.1, $2,500,000 in the aggregate principal amount outstanding at any one time; (i) Indebtedness owing to the Borrower or any Restricted Subsidiary by the Borrower or any Restricted Subsidiary of the Borrower, which Indebtedness is subordinated to the Obligations and evidenced by an entry on the financial records of the Borrower and any such Restricted Subsidiary of the Borrower; (j) Guaranties by the Borrower or Restricted Subsidiaries of the Borrower of Indebtedness of the Borrower or other Restricted Subsidiaries of the Borrower, to the extent such underlying Indebtedness is permitted hereunder; (k) Indebtedness to the extent permitted under Section 7.3 hereof; (l) Indebtedness incurred in connection with the financing of insurance premiums; (m) Indebtedness consisting of promissory notes issued by the Borrower or any of its Restricted Subsidiaries to officers, directors and employees of the Borrower or any of its Subsidiaries issued to purchase or redeem shares of common Equity Interests of the Borrower pursuant to the terms of any subscription agreement or option or similar agreement entered into in the ordinary course of business by the Borrower not to exceed $500,000 in aggregate principal amount outstanding at any time; (n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries in the form of indemnification obligations, reserves, adjustment of sale price or similar obligations, or from guarantees or letter of credit, surety bonds or performance bonds securing the performance of the 62 63 Borrower or any such Subsidiary pursuant to such agreements, in connection with the disposition of any business, assets or Subsidiaries of the Borrower or any of its Subsidiaries; (o) Indebtedness which may be deemed to exist pursuant to any performance, surety, statutory, appeal or similar bond obtained in the ordinary course of business; (p) Indebtedness consisting of obligations in respect of incentive, earn-out or other similar arrangements incurred in connection with Acquisitions, subject to the limitations on Acquisition Consideration under Section 7.6 hereof; and (q) Other Indebtedness not to exceed, together with Indebtedness permitted pursuant to clauses (c) and (h) of this Section 7.1, $2,500,000 in the aggregate principal amount outstanding at any one time. Section 7.2 Liens. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, create, assume, incur, permit or suffer to exist, directly or indirectly, any Lien on any of its assets, whether now owned or hereafter acquired, except Permitted Liens. The Borrower shall not, and shall not permit any Restricted Subsidiary to, agree with any other Person that it shall not create, assume, incur, permit or suffer to exist or to be created, assumed, incurred or permitted to exist, directly or indirectly, any Lien on any of its assets other than in respect of Indebtedness permitted by Sections 7.1(c), (d), (h) and (q), provided that such agreement relates only to the assets purchased or acquired. Section 7.3 Investments. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, make any Investment, except that the Borrower and any Restricted Subsidiary of the Borrower may purchase or otherwise acquire and own: (a) Domestic Cash and Cash Equivalents, deposit accounts and Foreign Cash and Cash Equivalents (provided that the Borrower and its Domestic Subsidiaries may not purchase, acquire or own any Foreign Cash and Cash Equivalents); (b) Accounts receivable that arise in the ordinary course of business and are payable on standard terms; (c) Investments in existence on the Agreement Date which are described on Schedule 5 hereto; (d) Investments which are Acquisitions permitted pursuant to Section 7.6 hereof; (e) Investments in the form of Interest Hedge Agreements permitted by Section 7.1(e) hereof; 63 64 (f) Net Investments in, and expenditures in respect of, Acquisitions of Unrestricted Subsidiaries and joint ventures in an aggregate amount after the Agreement Date not to exceed (calculated for such Investment or expenditure immediately prior to the date of such Investment or Acquisition) 5% of the lesser of (i) consolidated total assets of the Borrowers and its Subsidiaries or (ii) EBITDA for the immediately preceding four fiscal quarters (which for purposes of this section shall be calculated for the Borrower and its Subsidiaries); (g) Investments in the Borrower and Investments in Restricted Subsidiaries of the Borrower (i) which have executed a Subsidiary Guaranty and (ii) which have delivered to the Lenders such board resolutions, officer's certificates, corporate and other documents and opinions of counsel as the Administrative Agent shall reasonably request; (h) Net Investments in, and expenditures in respect of, Foreign Restricted Subsidiaries in an aggregate amount after the Agreement Date not to exceed (calculated for such Investment or expenditure immediately prior to the date of such Investment or Acquisition) the lesser of (i) 17% of consolidated total assets of the Borrower and its Subsidiaries or (ii) 20% of EBITDA for the immediately preceding four fiscal quarters (which for purposes of this clause (h) shall be calculated for the Borrower and its Subsidiaries); (i) Investments consisting of non-cash consideration received in connection with a sale of assets permitted by Section 7.5 not to exceed 25% (on a sale-by-sale basis) of the consideration for any such sale; (j) Investments arising from transactions by the Borrower or any of its Restricted Subsidiaries with customers or suppliers in the ordinary course of business, including prepayments and other credits made in the ordinary course of business, endorsements of negotiable instruments, debt obligations and other investments received in connection with the bankruptcy or reorganization of customers and suppliers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers; (k) Investments which are Capital Expenditures; (l) Investments which are loans to management, officers and employees of the Borrower or any of its Subsidiaries, the proceeds of which are used solely to purchase Equity Interests of the Borrower; (m) Investments in the form of the repurchase of common Equity Interests of the Borrower pursuant to the Netcom Recapitalization; (n) Investments which are pledges and deposits permitted under Section 7.2 hereof; (o) Investments otherwise permitted under Section 7.7 hereof; 64 65 (p) Investments which are deposits made in the ordinary course of business consistent with past practices to secure the performance of leases; and (q) Other Investments not to exceed $250,000 in the aggregate amount outstanding at any one time. Section 7.4 Liquidation, Merger. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, at any time: (a) liquidate or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up, except that a Restricted Subsidiary of the Borrower may liquidate or dissolve into the Borrower or a Restricted Subsidiary of the Borrower; or (b) enter into any merger or consolidation unless (i) with respect to a merger or consolidation involving the Borrower, the Borrower shall be the surviving corporation, or if the merger or consolidation involves a Restricted Subsidiary of the Borrower which is a Guarantor and not the Borrower, such Restricted Subsidiary shall be the surviving corporation, (ii) with respect to a merger or consolidation involving an Unrestricted Subsidiary or a Restricted Foreign Subsidiary, such Unrestricted Subsidiary or Restricted Foreign Subsidiary may merge into the Borrower (which shall be the surviving corporation) or a Restricted Subsidiary of the Borrower (which Restricted Subsidiary shall be the surviving entity), (iii) such transaction shall not be utilized to circumvent compliance with any term or provision herein and (iv) no Default or Event of Default shall then be in existence or occur as a result of such transaction. Section 7.5 Sales of Assets. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, sell, transfer or otherwise dispose of, any of its assets except (a) inventory in the ordinary course of business, (b) obsolete or worn-out assets, (c) sales of assets in which the Net Cash Proceeds from the disposition thereof (to the extent not applied pursuant to clause (d) immediately following) are reinvested, within 120 days before or after such disposition, in productive assets used in the business of the Borrower and its Restricted Subsidiaries, (d) asset sales the Net Cash Proceeds of which are applied in accordance with Section 2.5(c) hereof, (e) sales of accounts receivable permitted by Section 7.13 hereof, (f) sales, leases, licenses, transfers and other dispositions of assets by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary, (g) other sales or dispositions of assets having an aggregate fair market value not exceeding $250,000 during any fiscal year of the Borrower, (h) Investments permitted under Section 7.3 hereof, and (i) liquidations, dissolutions and mergers permitted by Section 7.4 hereof. Section 7.6 Acquisitions. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, make any Acquisitions; provided, however, if immediately prior to and after giving effect to the proposed Acquisition there shall not exist a Default or Event of Default, the Borrower or any Restricted Subsidiary of the Borrower may make Acquisitions so long as (i) such Acquisition shall not be opposed by the board of the directors of the Person being acquired, (ii) Lenders shall have received written notice at least 15 Business Days prior to the date of such 65 66 Acquisition, (iii) the Administrative Agent shall have received at least 5 Business Days prior to the date of such Acquisition a Compliance Certificate setting forth the covenant calculations on a pro forma basis (after giving effect to such Acquisition and the cost and expense savings related thereto) immediately after giving effect to the proposed Acquisition, (iv) the assets, property or business acquired shall be in the business described in Section 4.1(d) hereof, (v) if such Acquisition results in a Restricted Domestic Subsidiary, (A) such Subsidiary shall execute a Subsidiary Guaranty of the Obligations and (B) the Lenders receive such board resolutions, officer's certificates and opinions of counsel as the Administrative Agent shall reasonably request in connection with the actions described in clause (A) above, and (vi) if such Acquisition results in a Foreign Restricted Subsidiary, (A) 65% of such Subsidiary's Equity Interests shall be pledged to secure the obligations and (B) the Lenders receive such board resolutions, officer's certificates and opinions of counsel as the Administrative Agent shall reasonably request with clause (A) immediately preceding. Notwithstanding anything in this Section 7.6 or any other provision of this Agreement to the contrary, (a) Acquisition Consideration for Acquisitions during any fiscal year may not exceed $10,000,00 in aggregate amount (excluding the Acquisition described in Schedule 5 hereto), and (b) the aggregate amount of expenditures in respect of Acquisitions of, and Investments in, Unrestricted Subsidiaries by the Borrower and the Restricted Subsidiaries after the Agreement Date shall not exceed the amount permitted by Section 7.3(f) hereof. Section 7.7 Restricted Payments. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, directly or indirectly declare, pay or make any Restricted Payments except (a) Dividends payable by a Restricted Subsidiary to the Borrower, (b) to purchase, redeem, retire or otherwise acquire shares of Equity Interests of the Borrower, or options or warrants to purchase shares of such Equity Interests, held by officers, directors or employees of the Borrower or any of its Restricted Subsidiaries pursuant to a compensation plan or arrangement in connection with the death, disability or termination of employment of any such officer, director or employee in all such cases taken as a whole, so long as the aggregate cash payments shall not exceed $250,000 in aggregate principal amount during any fiscal year, (c) Permitted Distributions; (d) Investments pursuant to Section 7.3 and (e) refinancings of Institutional Debt pursuant to Section 7.1(d); provided, however, the Borrower shall not pay or make any Restricted Payments permitted by this Section 7.7 unless there shall exist no Default or Event of Default prior to or after giving effect to any such proposed Restricted Payment. Section 7.8 Affiliate Transactions. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, at any time engage in any transaction with an Affiliate (other than the Borrower or any other Obligor) on terms materially less advantageous to the Borrower or such Restricted Subsidiary than would be the case if such transaction had been effected with a non-Affiliate; provided, that the Borrower and the Restricted Subsidiaries of the Borrower may (i) pay reasonable and customary fees and expenses to their respective directors, (ii) pay compensation to their respective officers and employees, (iii) pay the transaction fees and expenses in connection with the Netcom Recapitalization and (iv) provide goods and services to the Borrower and the other Subsidiaries of the Borrower at a cost basis or any other fair and reasonable basis customarily utilized to allocate charges among a consolidated group of entities. 66 67 Section 7.9 Compliance with ERISA. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, directly or indirectly, or permit any member of its Controlled Group to directly or indirectly, (a) terminate any Plan so as likely to result in liability to the Borrower or any member of its Controlled Group taken as a whole which would reasonably be expected to have a Material Adverse Effect, (b) permit to exist any ERISA Event, or any other event or condition with respect to a Plan which would reasonably be expected to have a Material Adverse Effect, (c) make a complete or partial withdrawal (within the meaning of Section 4201 of ERISA) from any Multiemployer Plan which would reasonably be expected to have a Material Adverse Effect on the Borrower or any member of its Controlled Group taken as a whole, or (d) enter into any new Plan or modify any existing Plan so as to increase its obligations thereunder which would reasonably be expected to have a Material Adverse Effect. Section 7.10 Maximum Leverage Ratio. At the end of each fiscal quarter occurring during the periods indicated below, the Borrower shall not permit the Leverage Ratio (as calculated as of the last Business Day of each such fiscal quarter) to be greater than the ratio set forth below opposite the period in which such fiscal quarter occurs: Period Ratio ------ --------- From and including the Agreement Date to and including October 31, 1997 2.50 to 1 From and including November 1, 1997 to and including October 31, 1999 2.00 to 1 From and including November 1, 1999 to and including October 31, 2000 1.50 to 1 From and including November 1, 2000 and thereafter 1.00 to 1 Section 7.11 Minimum Fixed Charge Coverage Ratio. At the end of each fiscal quarter occurring during the periods indicated below, the Borrower shall not permit the Fixed Charge Coverage Ratio (as calculated on the last Business Day of each such fiscal quarter) to be less than the ratio set forth below opposite the period in which such fiscal quarter occurs: From and including the Agreement Date to and including October 31, 1999 1.50 to 1 From and including November 1, 1999 and thereafter 1.25 to 1 Section 7.12 Minimum EBITDA and Net Income. The Borrower shall not permit EBITDA or Net Income (as calculated in each case as of the last Business Day of each such fiscal quarter) to be less than $1.00 at the end of (and calculated with respect to) any fiscal quarter ending during this Agreement. Additionally, the Borrower shall not permit EBITDA (which for purposes of this sentence shall be calculated for the Borrower and its Restricted Domestic Subsidiaries) to be less than $30,000,000 for any fiscal year during the term of this Agreement. Section 7.13 Sale or Discount of Receivables. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, directly or indirectly, sell, with or without recourse, 67 68 for discount or otherwise, any notes or accounts receivable other than (a) in the ordinary course of business consistent with such practices of the Borrower prior to the Agreement Date or (b) discounting or sale of past-due receivables for collection in the ordinary course of business and in accordance with the past practices of the Borrower or the applicable Restricted Subsidiary. Section 7.14 Business. Neither the Borrower nor any Restricted Subsidiary of the Borrower shall primarily conduct any business other than the business described in Section 4.1(d) hereof and other businesses permitted to be acquired hereunder. Section 7.15 Fiscal Year. Neither the Borrower nor any Restricted Subsidiary of the Borrower shall change its fiscal year from July 31. Section 7.16 Amendment of Organizational Documents. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, amend its articles of incorporation, bylaws or other applicable organizational documents in any manner that would reasonably be expected to (a) result in a Material Adverse Effect or (b) materially impair or materially and adversely affect the Rights of the Administrative Agent or any Lender under any Loan Documents. Section 7.17 Amendments and Waivers of Institutional Debt. The Borrower shall not, and shall not permit any Restricted Subsidiary to, change or amend (or take any action or fail to take any action the result of which is an effective amendment or change) or accept any waiver or consent with respect to, any document, instrument or agreement relating to any Institutional Debt that would result in (a) an increase in the principal, interest, overdue interest, fees or other amounts payable under the Institutional Debt, (b) an acceleration in any date fixed for payment or prepayment of principal, interest, fees or other amounts payable under the Institutional Debt (including, without limitation, as a result of any redemption), (c) a reduction in any percentage of holders of the Institutional Debt required under the terms of the Institutional Debt to take (or refrain from taking) any action under the Institutional Debt, (d) a change in any covenant under the Institutional Debt making such covenant more restrictive, (e) a change in any default or event of default (however designated) under the Institutional Debt which makes such default or event of default more restrictive, (f) a change in the definition of "Change of Control" as provided in the Institutional Debt which would result in such definition being more restrictive than such definition in this Agreement, (g) a change in any of the subordination provisions of the Institutional Debt, (h) a change in any covenant, term or provision in the Institutional Debt which would result in such term or provision being more restrictive than the terms of this Agreement and the other Loan Documents or (i) a change in any term or provision of the Institutional Debt that could have, in any material respect, an adverse effect on the interest of the Lenders. Section 7.18 Sale and Leaseback. The Borrower shall not, and shall not permit any Restricted Subsidiary of the Borrower to, directly or indirectly, enter into any arrangement whereby it sells or transfers any of its assets, and thereafter rents or leases such assets. 68 69 ARTICLE 8 Default Section 8.1 Events of Default. Each of the following shall constitute an Event of Default, whatever the reason for such event, and whether voluntary, involuntary, or effected by operation of law or pursuant to any judgment or order of any court or any order, rule or regulation of any governmental or non-governmental body: (a) Any representation or warranty made by the Borrower or any Restricted Subsidiary under any Loan Document shall prove to have been incorrect or misleading in any material respect when made; (b) The Borrower shall fail to pay any (i) principal under any Note when due, (ii) interest under any Note or any fees payable under Section 2.4(a) or Section 2.15(f) hereof within two Business Days after the date due, or (iii) other fees payable hereunder or any other costs, fees, expenses or other amounts payable hereunder or under any other Loan Document within five Business Days after the date due; (c) The Borrower or any Restricted Subsidiary shall default in the performance or observance of any agreement or covenant contained Section 5.1 hereof or in Article 7 (other than Section 7.9) hereof; (d) Any Obligor or any Restricted Subsidiary of the Borrower shall default in the performance or observance of any other agreement or covenant contained in this Agreement not specifically referred to elsewhere in this Section 8.1, and such default shall not be cured within a period of thirty days after the earlier of notice from the Administrative Agent thereof or actual notice thereof by a Responsible Officer of any Obligor or such Restricted Subsidiary; (e) Any Obligor or any Restricted Subsidiary of the Borrower shall default in the performance or observance of any agreement or covenant in any of the Loan Documents (other than this Agreement) and such default shall not be cured within a period of thirty days after the earlier of notice from the Administrative Agent thereof or actual notice thereof by a Responsible Officer of any Obligor or such Restricted Subsidiary; (f) There shall be commenced an involuntary proceeding or an involuntary petition shall be filed in a court having competent jurisdiction seeking (i) relief in respect of any Obligor or any Restricted Subsidiary of the Borrower, or a substantial part of the property or the assets of such Obligor or Restricted Subsidiary of the Borrower, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable Federal, state or foreign bankruptcy law or other similar law, (ii) the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official of any Obligor or any Restricted Subsidiary of the Borrower, or of any substantial part of their respective properties, or (iii) the winding-up or liquidation of the affairs of 69 70 any Obligor or any Restricted Subsidiary of the Borrower, and any such proceeding or petition shall continue unstayed and in effect for a period of 60 consecutive days; (g) Any Obligor or any Restricted Subsidiary of the Borrower shall (i) file a petition, answer or consent seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable Federal, state or foreign bankruptcy law or other similar law, (ii) consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking of possession of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of any Obligor or any Restricted Subsidiary of the Borrower or of substantially all of its properties, (iii) file an answer admitting the material allegations filed against it in any such proceeding, (iv) make a general assignment for the benefit of creditors, (v) become unable, admit in writing its ability or fail generally to pay its debts as they become due, or (vi) any Obligor or any Restricted Subsidiary of the Borrower shall take any corporate action in furtherance of any such action; (h) A final judgment or judgments shall be entered by any court against any Obligor or any Restricted Subsidiary of the Borrower for the payment of money which exceeds $500,000 in the aggregate in excess of insurance, or a warrant of attachment or execution or similar process shall be issued or levied against property of any Obligor which, together with all other such property of the Borrower and its Restricted Subsidiaries subject to other such process, exceeds in value $500,000 in the aggregate, and if such judgment or award is not insured or, within 60 days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged; (i) With respect to any Plan of the Borrower or any member of its Controlled Group: (i) the Borrower, any such member, or any other party-in-interest or disqualified person (other than any Lender) shall engage in transactions which in the aggregate would reasonably be expected to result in a direct or indirect liability to the Borrower or any member of its Controlled Group under Section 409 or 502 of ERISA or Section 4975 of the Code; (ii) the Borrower or any member of its Controlled Group shall incur any accumulated funding deficiency, as defined in Section 412 of the Code, or request a funding waiver from the Internal Revenue Service for contributions; (iii) the Borrower or any member of its Controlled Group shall incur any withdrawal liability as a result of a complete or partial withdrawal within the meaning of Section 4203 or 4205 of ERISA, or any other liability with respect to a Plan, unless the amount of such liability has been funded within the Plan or pursuant to one or more insurance contracts; (iv) the Borrower or any member of its Controlled Group shall fail to make a required contribution by the due date under Section 412 of the Code or Section 302 of ERISA which would result in the imposition of a lien under Section 412 of the Code or Section 302 of ERISA; (v) the Borrower, any member of its Controlled Group or any Plan sponsor shall notify the PBGC of an intent to terminate, or the PBGC shall institute proceedings to terminate, or the PBGC shall institute proceedings to terminate, any Plan subject to Title IV of ERISA; (vi) a Reportable Event shall occur with respect to a Plan subject to Title IV of ERISA, and within 15 days after the reporting of such Reportable Event to the Administrative Agent, the Administrative Agent 70 71 shall have notified the Borrower in writing that the Determining Lenders have made a determination that, on the basis of such Reportable Event, there are reasonable grounds for the termination of such Plan by the PBGC or for the appointment by the appropriate United States District Court of a trustee to administer such Plan and as a result thereof an Event of Default shall have occurred hereunder; (vii) a trustee shall be appointed by a court of competent jurisdiction to administer any Plan or the assets thereof; or (viii) any ERISA Event with respect to a Plan subject to Title IV of ERISA shall have occurred, and 30 days thereafter (A) such ERISA Event, other than such event described in clause (f) of the definition of ERISA Event herein, (if correctable) shall not have been corrected and (B) the then present value of such Plan's benefit liabilities, as defined in Title IV of ERISA, shall exceed the then current value of assets accumulated in such Plan; provided, however, that the events listed in subsections (i) - (viii) above shall constitute Events of Default only if the maximum aggregate unpaid liability which the Borrower or any member of its Controlled Group has a reasonable likelihood of incurring under the applicable provisions of ERISA resulting from an event or events exceeds $500,000; (j) Any Obligor or any Subsidiary of the Borrower shall default in the payment of any Indebtedness in an aggregate amount of $1,250,000 or more beyond any grace period provided with respect thereto, or any other event or condition shall exist under any agreement or instrument under which such Indebtedness is created or evidenced beyond any applicable grace period, if the effect of such event or condition is to permit or cause the holder of such Indebtedness (or a trustee on behalf of any such holder) to (i) cause such Indebtedness to become due or prepaid prior to its date of maturity or (ii) require the any Obligor or any Subsidiary of the Borrower to purchase, prepay or redeem such Indebtedness; (k) Any Obligor shall assert in writing that any provision of any Loan Document is invalid or not binding on or enforceable against any Obligor or any material provision of any Loan Document shall for any reason cease to be valid and binding on or enforceable against any party to it (other than the Administrative Agent or any Lender) other than in accordance with its terms; or (l) A Change of Control shall occur. Section 8.2 Remedies. If an Event of Default shall have occurred and shall be continuing: (a) With the exception of an Event of Default specified in Section 8.1(f) or (g) hereof, the Administrative Agent may at its election, and shall upon the direction of the Determining Lenders, terminate the Commitments and/or declare the principal of and interest on the Advances and all Obligations and other amounts owed under the Loan Documents to be forthwith due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived, except for notices expressly set forth in the Loan Documents. (b) Upon the occurrence of an Event of Default specified in Section 8.1(f) or (g) hereof, such principal, interest and other amounts shall thereupon and concurrently therewith become due and payable and the Commitments shall forthwith terminate, all without any action by the 71 72 Administrative Agent, any Lender or any holders of the Notes and without presentment, demand, protest or other notice of any kind, all of which are expressly waived, anything in the Loan Documents to the contrary notwithstanding. (c) If any Letter of Credit shall be then outstanding, the Administrative Agent may at its election, and shall upon the direction of the Determining Lenders shall, demand upon the Borrower to, and forthwith upon such demand (but in the case of an Event of Default specified in Section 8.1(f) or (g) hereof, without any demand or taking of any other action by the Administrative Agent or any Lender), the Borrower shall, pay to the Administrative Agent in same day funds at the office of the Administrative Agent for deposit in the L/C Cash Collateral Account, an amount equal to the maximum amount available to be drawn under the Letters of Credit then outstanding. (d) The Administrative Agent and the Lenders may exercise all of the Rights granted to them under the Loan Documents or under Applicable Law. (e) The Rights of the Administrative Agent and the Lenders hereunder shall be cumulative, and not exclusive. ARTICLE 9 Changes in Circumstances Section 9.1 LIBOR Basis Determination Inadequate. If with respect to any proposed LIBOR Advance for any Interest Period, (i) any Lender determines that deposits in dollars (in the applicable amount) are not being offered to that Lender in the relevant market for such Interest Period or (ii) the Determining Lenders determine that the LIBOR Rate for such proposed LIBOR Advance does not adequately cover the cost to such Lender of making and maintaining such proposed LIBOR Advance for such Interest Period, such Lender or Determining Lenders, as the case may be, shall forthwith give notice thereof to the Borrower, whereupon until such Lender or Determining Lenders, as the case may be, notify the Borrower that the circumstances giving rise to such situation no longer exist, the obligation of such Lender to make LIBOR Advances shall be suspended; provided, however, such Lender or the Determining Lenders, as the case may be, shall promptly notify the Borrower if the circumstances giving rise to such situation no longer exist. Section 9.2 Illegality. If after the Agreement Date any change in applicable law, rule or regulation, or adoption thereof, or any change in any interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its LIBOR Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency, shall make it unlawful or impossible for such Lender (or its LIBOR Lending Office) to make, maintain or fund its LIBOR Advances, such Lender shall so notify the Borrower and the Administrative Agent. Before giving any notice to the Borrower pursuant to this Section, 72 73 the notifying Lender shall designate a different LIBOR Lending Office or other lending office if such designation will avoid the need for giving such notice and will not, in the sole judgment of the Lender, be materially disadvantageous to the Lender. Upon receipt of such notice, notwithstanding anything contained in Article 2 hereof, the Borrower shall repay in full the then outstanding principal amount of each LIBOR Advance owing to the notifying Lender, together with accrued interest thereon and any reimbursement required under Section 2.9 hereof, on either (a) the last day of the Interest Period applicable to such Advance, if the Lender may lawfully continue to maintain and fund such Advance to such day, or (b) immediately, if the Lender may not lawfully continue to fund and maintain such Advance to such day or if the Borrower so elects. Concurrently with repaying each affected LIBOR Advance owing to such Lender if the Borrower does not terminate this Agreement, notwithstanding anything contained in Article 2 hereof, the Borrower may, without any requirement to satisfy the conditions precedent set forth in Section 3.1, 3.2 or 3.3, borrow a Base Rate Advance from such Lender, and such Lender shall make such Base Rate Advance, in an amount such that the outstanding principal amount of the Advances owing to such Lender shall equal the outstanding principal amount of the Advances owing immediately prior to such repayment. Section 9.3 Increased Costs. (a) If after the Agreement Date any change in or adoption of any law, rule or regulation, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Lender (or its LIBOR Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (i) shall subject a Lender (or its LIBOR Lending Office) to any Tax (net of any tax benefit engendered thereby) with respect to its LIBOR Advances or its obligation to make such Advances, or shall change the basis of taxation of payments to a Lender (or to its LIBOR Lending Office) of the principal of or interest on its LIBOR Advances or in respect of any other amounts due under this Agreement, as the case may be, or its obligation to make such Advances (except for changes in (A) the rate of tax on the overall net income, net worth or capital of the Lender and franchise taxes, doing business taxes or minimum taxes imposed upon such Lender and (B) withholding taxes of any Tribunal other than the United States of America or any state thereof); or (ii) shall impose, modify or deem applicable any reserve (including, without limitation, any imposed by the Board of Governors of the Federal Reserve System), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, a Lender's LIBOR Lending Office or shall impose on the Lender (or its LIBOR Lending Office) or on the London interbank market any other condition affecting its LIBOR Advances or its obligation to make such Advances (but excluding any reserves or deposits that are included in the calculation of LIBOR Basis); 73 74 and the result of any of the foregoing is to increase the cost to a Lender (or its LIBOR Lending Office) of making or maintaining any LIBOR Advances, or to reduce the amount of any sum received or receivable by a Lender (or its LIBOR Lending Office) with respect thereto, by an amount deemed by a Lender to be material, then, within 30 days after demand by a Lender, the Borrower agrees to pay to such Lender such additional amount as will compensate such Lender for such increased costs or reduced amounts, subject to Section 11.9 hereof. The affected Lender will as soon as practicable notify the Borrower of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section and will designate a different LIBOR Lending Office or other lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the reasonable judgment of the affected Lender made in good faith, be disadvantageous to such Lender. (b) A certificate of any Lender claiming compensation under this Section and setting forth the additional amounts to be paid to it hereunder shall certify that such amounts or costs were actually incurred by such Lender and shall show in reasonable detail an accounting of the amount payable and the calculations used to determine in good faith such amount and shall be conclusive absent demonstrable error. In determining such amount, a Lender may use any reasonable averaging and attribution methods. Nothing in this Section 9.3 shall provide the Borrower or any Subsidiary of the Borrower the right to inspect the records, files or books of any Lender. If a Lender demands compensation under this Section, the Borrower may at any time, upon at least five Business Days' prior notice to the Lender, after reimbursement to the Lender by the Borrower in accordance with this Section of all costs incurred, prepay in full the then outstanding LIBOR Advances of the Lender, together with accrued interest thereon to the date of prepayment, along with any reimbursement required under Section 2.9 hereof. Concurrently with prepaying such LIBOR Advances, the Borrower may, without any requirement to satisfy the conditions precedent set forth in Section 3.1, 3.2 or 3.3, borrow a Base Rate Advance from the Lender, and the Lender shall make such Base Rate Advance, in an amount such that the outstanding principal amount of the Advances owing to such Lender shall equal the outstanding principal amount of the Advances owing immediately prior to such prepayment. Section 9.4 Effect On Base Rate Advances. If notice has been given pursuant to Section 9.1, 9.2 or 9.3 hereof suspending the obligation of a Lender to make LIBOR Advances, or requiring LIBOR Advances of a Lender to be repaid or prepaid, then, unless and until the Lender notifies the Borrower that the circumstances giving rise to such repayment no longer apply, all Advances which would otherwise be made by such Lender as LIBOR Advances shall be made instead as Base Rate Advances. Section 9.5 Capital Adequacy. If (a) the introduction of or any change in or in the interpretation of any law, rule or regulation after the Agreement Date or (b) compliance by a Lender with any Law or any guideline or request from any central bank or other governmental authority (whether or not having the force of law) adopted or promulgated after the Agreement Date (including any implementation of the Basle Accord or similar guideline or requirement adopted, promulgated or becoming effective after the Agreement Date) affects or would affect the amount of capital 74 75 required or expected to be maintained by a Lender or any corporation controlling such Lender, and such Lender determines that the amount of such capital is increased by or based upon the existence of such Lender's commitment or Advances hereunder and other commitments or advances of such Lender of this type, then, within 30 days after demand by such Lender, subject to Section 11.9, the Borrower shall immediately pay to such Lender, from time to time as specified by such Lender, additional amounts sufficient to compensate such Lender with respect to such circumstances, to the extent that such Lender reasonably determines in good faith such increase in capital to be allocable to the existence of such Lender's Commitments hereunder. A certificate as to any additional amounts payable to any Lender under this Section 9.5 submitted to the Borrower by such Lender shall certify that such amounts were actually incurred by such Lender or corporation controlling such Lender and shall show in reasonable detail an accounting of the amount payable and the calculations used to determine in good faith such amount and shall constitute prima facie evidence of such amount. In determining such amount, such Lender or a corporation controlling such Lender may use any reasonable averaging and attribution methods which provides for the allocation of such amounts among its affected customers in good faith on an equitable basis. Any claim by any Lender under this Section 9.5 shall be made within 90 days after such Lender becomes aware of the fact or circumstance giving rise thereto. Notwithstanding the foregoing, nothing in this Section 9.5 shall provide the Borrower or any Subsidiary of the Borrower the right to inspect the records, files or books of any Lender or any corporation controlling such Lender. Section 9.6 Replacement Lender. If the Borrower becomes obligated to pay additional amounts to any Lender described in Section 9.2, 9.3 or 9.5, the Borrower may designate a financial institution reasonably acceptable to the Administrative Agent to replace such Lender by purchasing for cash and receiving an assignment of such Lender's pro rata share of such Lender's Commitment and the Rights of such Lender under the Loan Documents without recourse to or warranty by, or expense to, such Lender, for a purchase price equal to the outstanding amounts owing to such Lender (including such additional amounts owing to such Lender pursuant to Section 9.3 or 9.5). Upon execution of an Assignment Agreement, such other financial institution shall be deemed to be a "Lender" for all purposes of this Agreement as set forth in Section 11.6 hereof. ARTICLE 10 Agreement Among Lenders Section 10.1 Agreement Among Lenders. The Lenders agree among themselves that: (a) Administrative Agent. Each Lender hereby appoints the Administrative Agent as its nominee in its name and on its behalf, to receive all documents and items to be furnished hereunder; to act as nominee for and on behalf of all Lenders under the Loan Documents; to, except as otherwise expressly set forth herein, take such action as may be requested by the Determining Lenders, provided that, (i) unless and until the Administrative Agent shall have received such requests, the Administrative Agent may take such administrative action, or refrain from taking such administrative 75 76 action, as it may deem advisable and in the best interests of the Lenders, and (ii) the Administrative Agent shall not be required to take any action that exposes the Administrative Agent to personal liability or that is contrary to any Loan Document or Applicable Law; to arrange the means whereby the proceeds of the Advances of the Lenders are to be made available to the Borrower; to distribute promptly to each Lender information, requests and documents received from the Borrower, and each payment (in like funds received) with respect to any of such Lender's Advances, or the ratable amount of fees or other amounts; and to deliver to the Borrower requests, demands, approvals and consents received from the Lenders. Administrative Agent agrees to promptly distribute to each Lender, at such Lender's address set forth below information, requests, documents and payments received from the Borrower. The Administrative Agent shall have no trustee or other fiduciary relationship in respect of any Lender by reason of this Agreement or any other Loan Document. The Administrative Agent shall have no duties or responsibilities except those expressly set forth in this Agreement. The duties of the Administrative Agent are mechanical and administrative in nature. (b) Replacement of Administrative Agent. Should the Administrative Agent or any successor Administrative Agent ever cease to be a Lender hereunder, or should the Administrative Agent or any successor Administrative Agent ever resign as Administrative Agent, or should the Administrative Agent or any successor Administrative Agent ever be removed with cause or without cause by the action of all Lenders (other than the Administrative Agent), then the Lender appointed by the other Lenders (with the consent of the Borrower, which consent shall not be unreasonably withheld) shall forthwith become the Administrative Agent, and the Borrower and the Lenders shall execute such documents as any Lender may reasonably request to reflect such change at no cost to the Borrower. If the Administrative Agent also then serves in the capacity of the Issuing Bank, such resignation or removal shall constitute resignation or removal of the Issuing Bank and the successor Administrative Agent shall serve in the capacity of the Issuing Bank. Any resignation or removal of the Administrative Agent or any successor Administrative Agent shall become effective upon the appointment by the Lenders of a successor Administrative Agent; provided, however, if no successor Administrative Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Administrative Agent's giving of notice of resignation or the Lenders' removal of the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent, which shall be a commercial bank organized under the Laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Administrative Agent, and the retiring Administrative Agent shall be discharged from its duties and obligations under the Loan Documents, provided that if the retiring or removed Administrative Agent is unable to appoint a successor Administrative Agent, the Administrative Agent shall, after the expiration of a 60 day period from the date of notice, be relieved of all obligations as Administrative Agent hereunder. Notwithstanding any Administrative Agent's resignation or removal hereunder, the provisions of this Article shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrative Agent under this Agreement. 76 77 (c) Expenses. Each Lender shall pay its pro rata share, based on its Specified Percentage, of any expenses paid by the Administrative Agent directly and solely in connection with any of the Loan Documents if Administrative Agent does not receive reimbursement therefor from other sources within 60 days after the date incurred. Any amount so paid by the Lenders to the Administrative Agent shall be returned by the Administrative Agent pro rata to each paying Lender to the extent later paid by the Borrower or any other Person on the Borrower's behalf to the Administrative Agent. (d) Delegation of Duties. The Administrative Agent may execute any of its duties hereunder by or through officers, directors, employees, attorneys or agents, and shall be entitled to (and shall be protected in relying upon) advice of counsel concerning all matters pertaining to its duties hereunder. (e) Reliance by Administrative Agent. The Administrative Agent and its officers, directors, employees, attorneys and agents shall be entitled to rely and shall be fully protected in relying on any writing, resolution, notice, consent, certificate, affidavit, letter, cablegram, telegram, telex or teletype message, statement, order, or other document or conversation reasonably believed by it or them in good faith to be genuine and correct and to have been signed or made by the proper Person and, with respect to legal matters, upon opinions of counsel selected by the Administrative Agent. The Administrative Agent may, in its reasonable judgment, deem and treat the payee of any Note as the owner thereof for all purposes hereof. (f) Limitation of Administrative Agent's Liability. Neither the Administrative Agent nor any of its officers, directors, employees, attorneys, shareholders or agents shall be liable for any action taken or omitted to be taken by it or them hereunder in good faith and believed by it or them to be within the discretion or power conferred to it or them by the Loan Documents or be responsible for the consequences of any error of judgment, except for its or their own gross negligence or wilful misconduct. Except as aforesaid, the Administrative Agent shall be under no duty to enforce any rights with respect to any of the Advances, or any security therefor. The Administrative Agent shall not be compelled to do any act hereunder or to take any action towards the execution or enforcement of the powers hereby created or to prosecute or defend any suit in respect hereof, unless indemnified to its reasonable satisfaction against loss, cost, liability and expense. The Administrative Agent shall not be responsible in any manner to any Lender for the effectiveness, enforceability, genuineness, validity or due execution of any of the Loan Documents, or for any representation, warranty, document, certificate, report or statement made herein or furnished in connection with any Loan Documents, or be under any obligation to any Lender to ascertain or to inquire as to the performance or observation of any of the terms, covenants or conditions of any Loan Documents on the part of the Borrower. TO THE EXTENT NOT REIMBURSED BY THE BORROWER, EACH LENDER HEREBY SEVERALLY INDEMNIFIES AND HOLDS HARMLESS THE ADMINISTRATIVE AGENT, PRO RATA ACCORDING TO ITS SPECIFIED PERCENTAGE, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES AND/OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON, ASSERTED AGAINST, 77 78 OR INCURRED BY THE ADMINISTRATIVE AGENT (IN SUCH CAPACITY) IN ANY WAY WITH RESPECT TO ANY LOAN DOCUMENTS OR ANY ACTION TAKEN OR OMITTED BY THE ADMINISTRATIVE AGENT UNDER THE LOAN DOCUMENTS (INCLUDING ANY NEGLIGENT ACTION OF THE ADMINISTRATIVE AGENT), EXCEPT TO THE EXTENT THE SAME ARE FINALLY DETERMINED BY A COURT OF COMPETENT JURISDICTION TO RESULT FROM GROSS NEGLIGENCE OR WILFUL MISCONDUCT BY THE ADMINISTRATIVE AGENT. THE INDEMNITY PROVIDED IN THIS SECTION 10.1(f) SHALL SURVIVE TERMINATION OF THIS AGREEMENT. (g) Liability Among Lenders. No Lender shall incur any liability (other than the sharing of expenses and other matters specifically set forth herein and in the other Loan Documents) to any other Lender, except for acts or omissions in bad faith. (h) Rights as Lender. With respect to its commitment hereunder, the Advances made by it and the Notes issued to it, the Administrative Agent shall have the same rights as a Lender and may exercise the same as though it were not the Administrative Agent, and the term "Lender" or "Lenders" shall, unless the context otherwise indicates, include the Administrative Agent in its individual capacity. The Administrative Agent or any Lender may accept deposits from, act as trustee under indentures of, and generally engage in any kind of business with, the Borrower and any of its Affiliates, and any Person who may do business with or own securities of the Borrower or any of its Affiliates, all as if the Administrative Agent were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. Section 10.2 Lender Credit Decision. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based upon the financial statements referred to in Sections 4.1(j), 6.1, 6.2 and 6.3 hereof, and such other documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based upon such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement and the other Loan Documents. Each Lender also acknowledges that its decision to fund the initial Advances shall constitute evidence to the Administrative Agent that such Lender has deemed all of the conditions set forth in Section 3.1 to have been satisfied. Section 10.3 Benefits of Article. None of the provisions of this Article shall inure to the benefit of any Person other than Lenders and, with respect to Section 10.1(b), the Borrower; consequently, no such other Person shall be entitled to rely upon, or to raise as a defense, in any manner whatsoever, the failure of the Administrative Agent or any Lender to comply with such provisions. ARTICLE 11 78 79 Miscellaneous Section 11.1 Notices. (a) All notices and other communications under this Agreement shall be in writing (except in those cases where giving notice by telephone is expressly permitted) and shall be deemed to have been given on the date personally delivered or sent by telecopy (answer back received), or three Business Days after deposit in the mail, designated as certified mail, return receipt requested, postage-prepaid, or one Business Day after being entrusted to a reputable commercial overnight delivery service, addressed to the party to which such notice is directed at its address determined as provided in this Section. All notices and other communications under this Agreement shall be given to the parties hereto at the following addresses: (i) If to the Borrower, at: 20500 Nordhoff Street Chatsworth, California 91311 Attention: Chief Financial Officer Telephone: (818) 700-5100 Telecopier: (818) 709-0827 (ii) If to the Administrative Agent, at: NationsBank of Texas, N.A. 901 Main Street, 67th Floor Dallas, Texas 75202-3714 Attention: Yousuf Omar Telephone: (214) 508-3347 Telecopier: (214) 508-0980 (iii) If to a Lender, at its address shown below its name on the signature pages hereof, or if applicable, set forth in its Assignment Agreement. (b) Any party hereto may change the address to which notices shall be directed by giving 10 days' written notice of such change to the other parties. Section 11.2 Expenses. The Borrower shall promptly pay: -------- (a) all reasonable out-of-pocket expenses of the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents, the transactions contemplated hereunder and thereunder, and the making of Advances hereunder, including without limitation the reasonable fees and disbursements of Special Counsel; 79 80 (b) all reasonable out-of-pocket expenses, including reasonable attorneys' fees, of the Administrative Agent in connection with the transactions contemplated in this Agreement and the other Loan Documents and the preparation, negotiation, execution and delivery of any waiver, amendment or consent by the Administrative Agent relating to this Agreement or the other Loan Documents; and (c) all reasonable out-of-pocket costs, expenses and attorneys' fees of the Administrative Agent and each Lender incurred for enforcement, collection, restructuring, refinancing and "workout", or otherwise incurred in obtaining performance under the Loan Documents, which in each case shall include without limitation reasonable fees and expenses of consultants, counsel for the Administrative Agent and any Lender. Section 11.3 Waivers. The rights and remedies of the Lenders under this Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or remedies which they would otherwise have. No failure or delay by the Administrative Agent or any Lender in exercising any right shall operate as a waiver of such right. The Lenders expressly reserve the right to require strict compliance with the terms of this Agreement in connection with any funding of a request for an Advance. In the event that any Lender decides to fund an Advance at a time when the Borrower is not in strict compliance with the terms of this Agreement, such decision by such Lender shall not be deemed to constitute an undertaking by the Lender to fund any further requests for Advances or preclude the Lenders from exercising any rights available under the Loan Documents or at law or equity. Any waiver or indulgence granted by the Lenders shall not constitute a modification of this Agreement, except to the extent expressly provided in such waiver or indulgence, or constitute a course of dealing by the Lenders at variance with the terms of the Agreement such as to require further notice by the Lenders of the Lenders' intent to require strict adherence to the terms of the Agreement in the future. Any such actions shall not in any way affect the ability of the Administrative Agent or the Lenders, in their discretion, to exercise any rights available to them under this Agreement or under any other agreement, whether or not the Administrative Agent or any of the Lenders are a party thereto, relating to the Borrower. Section 11.4 Calculation by the Lenders Conclusive and Binding. Any mathematical calculation required or expressly permitted to be made by the Administrative Agent or any Lender under this Agreement shall constitute prima facie evidence of any amount calculated. Section 11.5 Set-Off. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence and during the continuation of an Event of Default, each Lender and any subsequent holder of any Note, and any assignee of any Note is hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower or any other Person, any such notice being hereby expressly waived, to set-off, appropriate and apply any deposits (general or special (except trust and escrow accounts), time or demand, including without limitation Indebtedness evidenced by certificates of deposit, in each case whether matured or unmatured) and any other Indebtedness at any time held or owing by such Lender or holder to or for the credit or the account of the Borrower, against and on account of the Obligations 80 81 and other liabilities of the Borrower to such Lender or holder which are then due and payable, irrespective of whether or not (a) the Lender or holder shall have made any demand hereunder, or (b) the Lender or holder shall have declared the principal of and interest on the Advances and other amounts due hereunder to be due and payable as permitted by Section 8.2. Any sums obtained by any Lender or by any assignee or subsequent holder of any Note shall be subject to pro rata treatment of all Obligations and other liabilities hereunder in accordance with each Lender's Specified Percentage. Section 11.6 Assignment. (a) The Borrower may not assign or transfer any of its rights or obligations hereunder or under the other Loan Documents without the prior written consent of the Lenders. (b) No Lender shall be entitled to assign or grant a participation in its interest in this Agreement, its Notes or its Advances, except as hereinafter set forth. (c) Each Lender may sell participations to one or more banks or other entities (the "Participants") in or to all or a portion of its rights and obligations under this Agreement (including, without limitation, all or a portion of the Advances or Reimbursement Obligations owing to it and the Note or Notes held by it) (the "Participations"); provided, however, that (i) such Lender's obligations under this Agreement (including, without limitation, its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement and (v) no Participant under any such Participation shall have any right to approve any amendment or waiver of any provision of any Loan Document, or any consent to any departure by the Borrower therefrom, except to the extent that such amendment, waiver or consent would (A) reduce or postpone any date fixed for payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder or (B) increase the commitment of any Participant, in each case to the extent subject to such Participation. Notwithstanding the foregoing, the Borrower agrees that Participants shall be entitled to the benefits of Article 9 hereof as though they were Lenders and the Lenders may, subject to Section 11.14 hereof, provide copies of all financial information received from the Borrower to such Participants. (d) Each Lender may assign to one or more Eligible Assignees its rights and obligations under this Agreement and the other Loan Documents; provided, however, that (i) each such assignment shall be subject to the prior written consent of the Administrative Agent and Borrower, which consent shall not be unreasonably withheld (provided, however, notwithstanding anything herein to the contrary, no consent of the Borrower is required for any assignment during any time that an Event of Default has occurred and is continuing), (ii) no such assignment shall be in a principal amount of Commitments less than $10,000,000, unless the Commitments of a Lender are less than $10,000,000, in which case such assignment may be in the aggregate amount of such 81 82 Lender's Commitments, (iii) the applicable Lender, Administrative Agent and Eligible Assignee shall execute and deliver to the Administrative Agent an Assignment and Acceptance Agreement (an "Assignment Agreement") in substantially the form of Exhibit D hereto, together with the Notes subject to such assignment and (iv) the Eligible Assignee executing the Assignment, shall deliver to the Administrative Agent a processing fee of $3,500. Upon such execution, delivery and acceptance from and after the effective date specified in each Assignment, which effective date shall be at least three Business Days after the execution thereof, (A) the Eligible Assignee thereunder shall be party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment, have the rights and obligations of a Lender hereunder and (B) the applicable Lender shall, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment, relinquish such rights and be released from such obligations under this Agreement. (e) Notwithstanding anything in clause (d) above to the contrary, any Lender may assign and pledge all or any portion of its Advances and Notes to any Federal Reserve Bank as collateral security pursuant to Regulation A of F.R.S. Board and any Operating Circular issued by such Federal Reserve Bank; provided, however, that no such assignment under this clause (e) shall release the assignor Lender from its obligations hereunder. (f) Upon its receipt of an Assignment Agreement executed by a Lender and an Eligible Assignee, and any Note or Notes subject to such assignment, the Borrower shall, subject to the Borrower's rights under Section 11.6(d), within five Business Days after its receipt of such Assignment Agreement execute and deliver to the Administrative Agent in exchange for the surrendered Notes new Notes to the order of such Eligible Assignee in an amount equal to the portion of the Advances and Commitments assigned to it pursuant to such Assignment Agreement and new Notes to the order of the assignor Lender in an amount equal to the portion of the Advances and Commitments retained by it hereunder. Such new Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Notes, shall be dated the effective date of such Assignment Agreement and shall otherwise be in substantially the form of Exhibits A and B hereto. (g) Any Lender may, in connection with any assignment or participation or proposed assignment or participation pursuant to this Section 11.6, disclose to the Eligible Assignee or Participant or proposed Eligible Assignee or participant, any information relating to the Borrower furnished to such Lender by or on behalf of the Borrower, provided such Person agrees in writing to handle such information in accordance with the standards set forth in Section 11.14 hereof. (h) Except as specifically set forth in this Section 11.6, nothing in this Agreement or any other Loan Documents, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement or any other Loan Documents. 82 83 (i) Notwithstanding anything in this Section 11.6 to the contrary, no Eligible Assignee or Participant (nor the assigning or participating Lender) shall be entitled to receive (whether individually or collectively) any greater payment under Section 2.14 or Section 9.3 or Section 9.5 than such assigning or participating Lender would have been entitled to receive with respect to the interest assigned or participated to such Eligible Assignee or Participant. Section 11.7 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument. Section 11.8 Severability. Any provision of this Agreement or any other Loan Document which is for any reason prohibited or found or held invalid or unenforceable by any court or governmental agency shall be ineffective to the extent of such prohibition or invalidity or unenforceability without invalidating the remaining provisions hereof or thereof in such jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Section 11.9 Interest and Charges. It is not the intention of any parties to this Agreement to make an agreement in violation of the laws of any applicable jurisdiction relating to usury. Regardless of any provision in any Loan Documents, no Lender shall ever be entitled to receive, collect or apply, as interest on the Obligations, any amount in excess of the Highest Lawful Amount. If any Lender or participant ever receives, collects or applies, as interest, any such excess, such amount which would be excessive interest shall be deemed a partial repayment of principal and treated hereunder as such; and if principal is paid in full, any remaining excess shall be paid to the Borrower. In determining whether or not the interest paid or payable, under any specific contingency, exceeds the Highest Lawful Rate, the Borrower and the Lenders shall, to the maximum extent permitted under Applicable Law, (a) characterize any nonprincipal payment as an expense, fee or premium rather than as interest, (b) exclude voluntary prepayments and the effect thereof, and (c) amortize, prorate, allocate and spread in equal parts, the total amount of interest throughout the entire contemplated term of the Obligations so that the interest rate is uniform throughout the entire term of the Obligations; provided, however, that if the Obligations are paid and performed in full prior to the end of the full contemplated term thereof, and if the interest received for the actual period of existence thereof exceeds the Highest Lawful Rate, the Lenders shall refund to the Borrower the amount of such excess or credit the amount of such excess against the total principal amount of the Obligations owing, and, in such event, the Lenders shall not be subject to any penalties provided by any laws for contracting for, charging or receiving interest in excess of the Highest Lawful Rate. This Section shall control every other provision of all agreements pertaining to the transactions contemplated by or contained in the Loan Documents. Section 11.10 Headings. Headings used in this Agreement are for convenience only and shall not be used in connection with the interpretation of any provision hereof. Section 11.11 Amendment and Waiver. The provisions of this Agreement may not be amended, modified or waived except by the written agreement of the Borrower and the Determining 83 84 Lenders; provided, however, that no such amendment, modification or waiver shall be made (a) without the consent of all Lenders, if it would (i) increase the Specified Percentage or commitment of any Lender, or (ii) extend or postpone the date of maturity of, extend the due date for any payment of principal or interest on, reduce the amount of any installment of principal or interest on, or reduce the rate of interest on, any Advance, the Reimbursement Obligations or other amount owing under any Loan Documents to which such Lender is entitled, or (iii) release any guaranty of the Obligations (except pursuant to this Agreement or the other Loan Documents), or (iv) reduce the fees payable hereunder to which such Lender is entitled, or (v) revise this Section 11.11, or (vi) waive the date for payment of any principal, interest or fees hereunder or (vii) amend the definition of "Determining Lenders" or "Specified Percentage"; (b) without the consent of the Administrative Agent, if it, would alter the rights, duties or obligations of the Administrative Agent; or (c) without the consent of the Issuing Bank, if it would alter the rights, duties or obligations of the Issuing Bank. Neither this Agreement nor any term hereof may be amended orally, nor may any provision hereof be waived orally but only by an instrument in writing signed by the Administrative Agent and, in the case of an amendment, by the Borrower. Section 11.12 Exception to Covenants. Neither the Borrower nor any Subsidiary of the Borrower shall be deemed to be permitted to take any action or fail to take any action which is permitted as an exception to any of the covenants contained herein or which is within the permissible limits of any of the covenants contained herein if such action or omission would result in the breach of any other covenant contained herein. Section 11.13 No Liability of Issuing Bank. The Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to its use of such Letter of Credit. Neither the Issuing Bank nor any Lender nor any of their respective officers or directors shall be liable or responsible for: (a) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank against presentation of documents that do not comply with the terms of a Letter of Credit, including failure of any documents to bear any reference or adequate reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing to make payment under any Letter of Credit, except that the Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall be liable to the Borrower, to the extent of any direct, but not consequential, damages suffered by the Borrower that a court of competent jurisdiction finally judicially determines were caused by (i) the Issuing Bank's wilful misconduct or gross negligence or (ii) the Issuing Bank's wilful failure to make lawful payment under a Letter of Credit after the presentation to it of a draft and certificates strictly complying with the terms and conditions of the Letter of Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary. 84 85 Section 11.14 Confidentiality. Each Lender and the Administrative Agent agrees (on behalf of itself and each of its Affiliates, directors, officers, employees and representatives) to use reasonable efforts to keep confidential, in accordance with customary procedures for handling confidential information of this nature and in accordance with safe and sound banking practices, any non-public information supplied to it by the Borrower or any of its Affiliates pursuant to this Agreement, provided that nothing herein shall limit the disclosure of any such information (a) to the extent required by statute, rule, regulation or judicial process, (b) to counsel for any Lender or the Administrative Agent, (c) to bank examiners, auditors or accountants of any Lender, (d) to the Administrative Agent or any other Lender or any Affiliate thereof, (e) in connection with any Litigation to which any one or more of Lenders is a party, (f) to the extent necessary in connection with the exercise of any remedy under this Agreement or any other Loan Document, or (g) to any Eligible Assignee or Participant (or prospective Eligible Assignee or Participant) so long as such Eligible Assignee or Participant (or prospective Eligible Assignee or Participant) agrees to handle such information in accordance with the provisions of this Section 11.14. Section 11.15 No Duties of Documentation Agent. The Borrower and each Lender acknowledge that the Documentation Agent shall have no duties, responsibilities or liabilities in its capacity as Documentation Agent hereunder. SECTION 11.16 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS) AND THE UNITED STATES OF AMERICA. THE LOAN DOCUMENTS ARE PERFORMABLE IN DALLAS COUNTY, TEXAS, AND THE BORROWER AND EACH SURETY, GUARANTOR, ENDORSER AND ANY OTHER PARTY EVER LIABLE FOR PAYMENT OF ANY MONEY PAYABLE WITH RESPECT TO THE LOAN DOCUMENTS, JOINTLY AND SEVERALLY WAIVE THE RIGHT TO BE SUED ELSEWHERE. WITHOUT EXCLUDING ANY OTHER JURISDICTION, THE BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER EACH AGREES THAT THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS, TEXAS, SHALL HAVE JURISDICTION OVER PROCEEDINGS IN CONNECTION WITH THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND HEREBY SUBMITS WITH RESPECT TO ITSELF AND ITS PROPERTY TO THE JURISDICTION OF ANY SUCH COURT FOR THE PURPOSE OF ANY SUIT, ACTION, PROCEEDING OR JUDGMENT RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT. SECTION 11.17 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE ADMINISTRATIVE AGENT, THE DOCUMENT AGENT AND THE LENDERS HEREBY KNOWINGLY VOLUNTARILY, IRREVOCABLY AND INTENTIONALLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM ARISING OUT OF OR RELATED TO ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED 85 86 THEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH LENDER ENTERING INTO THIS AGREEMENT AND MAKING ANY ADVANCES HEREUNDER. SECTION 11.18 ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER HEREIN AND THEREIN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. Section 11.19 Consent by Administrative Agent and the Lenders. The Administrative Agent and each of the Lenders hereby consents to the consummation of the transactions contemplated by the Netcom Recapitalization Documents pursuant to Section 506 of the General Corporation Law of the State of California as in effect as of the Agreement Date. The Administrative Agent and each of the Lenders has received historical financial information regarding the Borrower (including audited financial statements, as of July 31, 1997, for the Borrower) and have also received pro forma balance sheets giving effect to the transactions contemplated by the Netcom Recapitalization Documents. 86 87 IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first set forth above. BORROWER: NETCOM SYSTEMS, INC. By: ------------------------------------- Name: -------------------------------- Title: ------------------------------- ADMINISTRATIVE AGENT: NATIONSBANK OF TEXAS, N.A., as Administrative Agent By: ------------------------------------- Name: -------------------------------- Title: ------------------------------- DOCUMENTATION AGENT: BANKBOSTON, N.A. By: ------------------------------------- Name: -------------------------------- Title: ------------------------------- 87 88 LENDERS: NATIONSBANK OF TEXAS, N.A., as a Lender and Issuing Bank Specified Percentage: 50% By: ------------------------------------- Name: -------------------------------- Title: ------------------------------- 901 Main Street, 67th Floor Dallas, Texas 75202 Attn: Yousuf Omar BANKBOSTON, N.A. Specified Percentage: 50% By: ------------------------------------- Name: -------------------------------- Title: ------------------------------- 435 Tasso Street, Suite 250 Palo Alto, California 94301 with a copy to: BankBoston, N.A. High Technology Division 100 Federal Street MS 01-08-06 Boston, Massachusetts 02110 88 89 SCHEDULE 1 LIBOR LENDING OFFICES NATIONSBANK OF TEXAS, N.A. 901 Main Street, 67th Floor Dallas, Texas 75202 BANKBOSTON, N.A. 100 Federal Street MS 01-08-06 Boston, Massachusetts 02110 90 SCHEDULE 2 EXISTING LIENS None 91 SCHEDULE 3 EXISTING LITIGATION None 92 SCHEDULE 4 CAPITALIZATION STATE OF PERCENTAGE NAME INCORPORATION CLASS OF STOCK OF OWNERSHIP OWNER ---- ------------- -------------- ------------ ----- Netcom Systems, Inc. California Common Stock 90.0% Marc Hamon Common Stock 1.8% Jim Jordan Common Stock 4.5% Henry Hamon Common Stock 1.8% Dick Bass Common Stock ** Harley Shanko Common Stock ** Jerry Kattel Preferred Stock* 49.1% Summit Ventures IV, L.P. Preferred Stock* ** Summit Investors II, L.P. Preferred Stock* 16.6% NationsBanc Capital Corp. Preferred Stock* 30.1% Northstar Investors, LLC Preferred Stock* 3.1% Spitfire Capital Partners, L.P. Preferred Stock* ** Bain Securities, Inc. Preferred Stock* ** Peter Mooney, as nominee for Broadview Partners Group Preferred Stock* ** WS Investment Company 97B Preferred Stock* ** WSGR Profit Sharing Trust Preferred Stock* ** Steven E. Bochner Preferred Stock* ** Nevan C. Elam Preferred Stock* ** Todd Cleary - ---------- * Netcom Redeemable Preferred Stock and Netcom Convertible Preferred Stock. ** Less than 1%. 93 SCHEDULE 5 EXISTING INVESTMENTS The Company has entered into a Letter of Intent with Henry Hamon and Elie Hamon concerning a proposed Stock Purchase Agreement whereby the Company would purchase all of the outstanding shares of the French Societe a Responsabilite Limitee Netcom Systems Europe, a company organized under the laws of the Republic of France, held by Messrs. Hamon. 94 SCHEDULE 6 EXISTING INDEBTEDNESS None 95 SCHEDULE 7 AUTHORIZATION, QUALIFICATION AND GOOD STANDING The Borrower may be required to qualify to do business in Massachusetts, New Hampshire and North Carolina, but it is not yet qualified to do business in such states. As of the Agreement Date, the Borrower is in the process of qualifying to do business in such states. 96 SCHEDULE 8 LABOR RELATIONS None 97 Execution Copy ================================================================================ $60,000,000 CREDIT AGREEMENT AMONG NETCOM SYSTEMS, INC. CERTAIN LENDERS NAMED HEREIN BANKBOSTON, N.A., AS DOCUMENTATION AGENT AND NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE AGENT August 29, 1997 ================================================================================ 98 TABLE OF CONTENTS Page ---- ARTICLE 1 Definitions Section 1.1 Defined Terms..................................................1 Section 1.2 Amendments and Renewals.......................................23 Section 1.3 Construction..................................................23 ARTICLE 2 Advances Section 2.1 The Advances..................................................23 Section 2.2 Manner of Borrowing and Disbursement..........................24 Section 2.3 Interest......................................................25 Section 2.4 Fees..........................................................27 Section 2.5 Prepayments...................................................27 Section 2.6 Reduction of Revolving Credit Commitment......................29 Section 2.7 Non-Receipt of Funds by the Administrative Agent..............30 Section 2.8 Payment of Principal of Advances..............................30 Section 2.9 Reimbursement.................................................31 Section 2.10 Manner of Payment.............................................31 Section 2.11 LIBOR Lending Offices.........................................32 Section 2.12 Sharing of Payments...........................................32 Section 2.13 Calculation of LIBOR Rate.....................................33 Section 2.14 Taxes.........................................................33 Section 2.15 Letters of Credit.............................................36 ARTICLE 3 Conditions Precedent Section 3.1 Conditions Precedent to the Initial Advances and the Initial Letters of Credit.....................................42 Section 3.2 Conditions Precedent to All Advances and Letters of Credit....44 Section 3.3 Conditions Precedent to Conversions and Continuations.........45 ARTICLE 4 Representations and Warranties Section 4.1 Representations and Warranties................................45 Section 4.2 Survival of Representations and Warranties, etc...............53 ARTICLE 5 General Covenants Section 5.1 Preservation of Existence and Similar Matters.................53 Section 5.2 Business; Compliance with Applicable Law......................53 Section 5.3 Maintenance of Properties.....................................54 99 TABLE OF CONTENTS (CONTINUED) Page ---- Section 5.4 Accounting Methods and Financial Records......................54 Section 5.5 Insurance.....................................................54 Section 5.6 Payment of Taxes and Claims...................................54 Section 5.7 Visits and Inspections........................................54 Section 5.8 Use of Proceeds...............................................55 Section 5.9 Indemnity.....................................................55 Section 5.10 Environmental Law Compliance..................................57 Section 5.11 Further Assurances............................................57 Section 5.12 Restricted Domestic Subsidiaries..............................57 ARTICLE 6 Information Covenants Section 6.1 Monthly Financials............................................58 Section 6.2 Quarterly Financial Statements and Information................58 Section 6.3 Annual Financial Statements and Information; Certificate of No Default ....................................58 Section 6.4 Compliance Certificate........................................58 Section 6.5 Copies of Other Reports and Notices...........................59 Section 6.6 Notice of Litigation, Default and Other Matters...............60 Section 6.7 ERISA Reporting Requirements..................................60 ARTICLE 7 Negative Covenants Section 7.1 Indebtedness..................................................61 Section 7.2 Liens.........................................................63 Section 7.3 Investments...................................................63 Section 7.4 Liquidation, Merger...........................................65 Section 7.5 Sales of Assets...............................................65 Section 7.6 Acquisitions..................................................65 Section 7.7 Restricted Payments...........................................66 Section 7.8 Affiliate Transactions........................................66 Section 7.9 Compliance with ERISA.........................................67 Section 7.10 Maximum Leverage Ratio........................................67 Section 7.11 Minimum Fixed Charge Coverage Ratio...........................67 Section 7.12 Minimum EBITDA and Net Income.................................67 Section 7.13 Sale or Discount of Receivables...............................68 Section 7.14 Business......................................................68 Section 7.15 Fiscal Year...................................................68 Section 7.16 Amendment of Organizational Documents.........................68 Section 7.17 Amendments and Waivers of Institutional Debt..................68 Section 7.18 Sale and Leaseback............................................68 100 TABLE OF CONTENTS (CONTINUED) Page ---- ARTICLE 8 Default Section 8.1 Events of Default.............................................69 Section 8.2 Remedies......................................................71 ARTICLE 9 Changes in Circumstances Section 9.1 LIBOR Basis Determination Inadequate..........................72 Section 9.2 Illegality....................................................72 Section 9.3 Increased Costs...............................................73 Section 9.4 Effect On Base Rate Advances..................................74 Section 9.5 Capital Adequacy..............................................74 Section 9.6 Replacement Lender............................................75 ARTICLE 10 Agreement Among Lenders Section 10.1 Agreement Among Lenders.......................................75 Section 10.2 Lender Credit Decision........................................78 Section 10.3 Benefits of Article...........................................78 ARTICLE 11 Miscellaneous Section 11.1 Notices.......................................................79 Section 11.2 Expenses......................................................79 Section 11.3 Waivers.......................................................80 Section 11.4 Calculation by the Lenders Conclusive and Binding.............80 Section 11.5 Set-Off.......................................................80 Section 11.6 Assignment....................................................81 Section 11.7 Counterparts..................................................83 Section 11.8 Severability..................................................83 Section 11.9 Interest and Charges..........................................83 Section 11.10 Headings......................................................83 Section 11.11 Amendment and Waiver..........................................84 Section 11.12 Exception to Covenants........................................84 Section 11.13 No Liability of Issuing Bank..................................84 Section 11.14 Confidentiality...............................................85 Section 11.15 No Duties of Documentation Agent..............................85 Section 11.16 Governing Law.................................................85 Section 11.17 Waiver of Jury Trial..........................................85 Section 11.18 Entire Agreement..............................................86 Section 11.19 Consent by Administrative Agent and the Lenders...............86 101 TABLE OF CONTENTS (CONTINUED) Schedules and Exhibits Schedule 1: LIBOR Lending Offices Schedule 2: Existing Liens Schedule 3: Existing Litigation Schedule 4: Capitalization Schedule 5: Existing Investments Schedule 6: Existing Indebtedness Schedule 7: Authorizstion, Qualification and Good Standing Schedule 8: Labor Relations Exhibit A: Revolving Credit Note Exhibit B: Term Loan Note Exhibit C: Compliance Certificate Exhibit D: Assignment and Acceptance Exhibit E: Subsidiary Guaranty Exhibit F: Notice of Borrowing 102 TABLE OF CONTENTS (CONTINUED) Page ---- Section 1. Recapitalization..................................................................1 1A. Authorization...............................................................1 1B. Investment Transaction......................................................2 1C. Repurchase Transaction......................................................2 1D. Closing.....................................................................3 Section 2. Conditions of the Purchasers' Obligations at the Closing..........................3 2A. Representations and Warranties; Covenants...................................4 2B. Amendment of Articles of Incorporation......................................4 2C. Amendment of Bylaws.........................................................4 2D. Shareholders Agreement......................................................4 2E. Registration Agreement......................................................4 2F. [Intentionally Omitted.]....................................................4 2G. Escrow Agreement............................................................4 2H. Stock Purchase Agreement....................................................4 2I. Opinion of the Company's and the Sellers' Counsel...........................4 2J. Senior Debt Financing.......................................................5 2K. Repurchase Transaction......................................................5 2L. Release of Liens............................................................5 2M. Audit.......................................................................5 2N. Litigation..................................................................5 2O. Filings.....................................................................5 2P. Third Party Consents and Approvals..........................................5 2Q. Governmental Consents and Approvals.........................................5 2R. Material Adverse Change.....................................................6 2S. Expenses....................................................................6 2T. Real Estate Matters.........................................................6 2U. Solvency Opinion............................................................6 2V. Proceedings. ..............................................................6 2W. Closing Documents...........................................................6 2X. Waiver......................................................................7 Section 3. Conditions of the Obligations of the Company and the Sellers at the Closing.......7 3A. Representations and Warranties; Covenants...................................7 3B. Amendment of Articles of Incorporation......................................7 3C. Shareholders Agreement......................................................7 3D. Registration Agreement......................................................8 3E. Escrow Agreement............................................................8 3F. Litigation..................................................................8 3G. Governmental Consents and Approvals.........................................8 -i- 103 TABLE OF CONTENTS (CONTINUED) Page ---- 3H. Investment Transaction......................................................8 3I. Expenses....................................................................8 3J. Waiver......................................................................8 Section 4. Pre-Closing Covenants and Agreements..............................................8 4A. General.....................................................................8 4B. Maintenance of Business.....................................................8 4C. Third Party Notices and Consents............................................9 4D. Governmental Notices and Consents...........................................9 4E. Operation of Business.......................................................9 4F. Full Access................................................................10 4G. Compliance with Agreements and Laws........................................10 4H. Payment of Obligations.....................................................10 4I. Notice of Material Developments............................................10 4J. Exclusivity................................................................10 4K. Tax Matters................................................................11 4L. Actions with Respect to Repurchased Shares.................................11 4M. Employees..................................................................11 Section 5. Representations and Warranties of the Company and the Sellers....................11 5A. Organization, Corporate Power and Licenses.................................11 5B. Capital Stock and Related Matters..........................................12 5C. Subsidiaries; Investments..................................................13 5D. Authorization; No Breach. .................................................13 5E. Financial Statements.......................................................14 5F. Absence of Undisclosed Liabilities.........................................14 5G. Accounts Receivable........................................................14 5H. Inventories................................................................14 5I. Product Warranty; Product Certifications...................................15 5J. Product Liability..........................................................15 5K. Product Recall, etc........................................................15 5L. No Material Adverse Effect.................................................16 5M. Absence of Certain Developments............................................16 5N. Assets.....................................................................17 5O. Tax Matters................................................................18 5P. Contracts and Commitments..................................................20 5Q. International Trade Laws and Regulations...................................22 5R. Intellectual Property Rights...............................................23 5S. Litigation, etc. ..........................................................24 5T. Brokerage..................................................................25 5U. Insurance..................................................................25 -ii- 104 TABLE OF CONTENTS (CONTINUED) Page ---- 5V. Employees..................................................................25 5W. ERISA......................................................................26 5X. Compliance with Laws; Permits; Certain Operations..........................27 5Y. Environmental and Safety Matters...........................................28 5Z. Affiliated Transactions....................................................28 5AA. Names and Locations........................................................29 5BB. Suppliers and Customers....................................................29 5CC. Real Property..............................................................29 5DD. Regulatory Status..........................................................29 5EE. Margin Securities..........................................................29 5FF. Small Business Matters.....................................................29 5GG. Disclosure.................................................................30 Section 6. Representations and Warranties of the Sellers....................................30 6A. Capacity; Power and Authority..............................................30 6B. Authorization; No Breach. .................................................30 6C. Title to Shares, etc.......................................................30 6D. Brokerage..................................................................30 6E. Litigation, etc. ..........................................................31 6F. Company Transactions.......................................................31 Section 7. Representations and Warranties of the Purchasers.................................31 7A. Organization, Power and Authority..........................................31 7B. Authorization; No Breach. .................................................31 7C. Brokerage..................................................................31 7D. Investment Representations.................................................32 Section 8. Indemnification and Other Agreements.............................................32 8A. Survival of Representations and Warranties.................................32 8B. General Indemnification. ..................................................33 8C. Press Release and Announcements. ..........................................37 8D. Non-Compete; Non-Solicitation..............................................37 8F. Intellectual Property Rights Protection....................................40 8G. Dispute Resolution.........................................................40 8H. Further Assurances.........................................................41 8I. Option Re-Pricing..........................................................41 Section 9. Definitions......................................................................42 Section 10. Termination.....................................................................49 -iii- 105 TABLE OF CONTENTS (CONTINUED) Page ---- 10A. Conditions of Termination..................................................49 10B. Effect of Termination......................................................49 Section 11. Miscellaneous...................................................................50 11A. Fees and Expenses..........................................................50 11B. Remedies...................................................................50 11C. Transfer of Restricted Securities..........................................50 11D. Consent to Amendments......................................................51 11E. Successors and Assigns.....................................................52 11F. Severability...............................................................52 11G. Counterparts...............................................................52 11H. Descriptive Headings; Interpretation.......................................52 11I. Entire Agreement...........................................................53 11J. No Third-Party Beneficiaries...............................................53 11K. Schedules..................................................................53 11L. Cooperation on Tax Matters.................................................53 11M. Schedules and Exhibits.....................................................54 11N. Treatment of the Preferred Stock...........................................54 11O. Governing Law..............................................................54 11P. Notices....................................................................54 11Q. No Strict Construction.....................................................57 EXHIBITS AND SCHEDULES Exhibit A - Amended and Restated Articles of Incorporation Exhibit B - Escrow Agreement Exhibit C - Amended and Restated Bylaws Exhibit D - Shareholders Agreement Exhibit E - Registration Agreement Exhibit F - Stock Purchase Agreement Exhibit G - Opinion of Counsel for the Company and the Sellers Disclosure Schedules: Schedule of Purchasers Schedule of Sellers Contracts Schedule Capitalization Schedule Investments and Subsidiaries Schedule -iv- 106 TABLE OF CONTENTS (CONTINUED) Restrictions Schedule Financial Statements Schedule Liabilities Schedule Accounts Receivable Schedule Inventories Schedule Product Warranty Schedule Product Liability Schedule Product Recall Schedule Developments Schedule Assets Schedule Taxes Schedule Intellectual Property Schedule Employees Schedule Employee Benefits Schedule International Trade Compliance Schedule Litigation Schedule Insurance Schedule Employees Schedule Compliance Schedule Permits Schedule Environmental Schedule Affiliated Transactions Schedule Names and Locations Schedule Suppliers and Customers Schedule Company is not presently chedule -v-