Exhibit 4.4


 




 





U.S. $1,500,000,000


 


THREE-YEAR CREDIT
AGREEMENT


 


Dated as of December 22, 2003


 


among


 


TYCO INTERNATIONAL
GROUP S.A.,


Borrower,


 


TYCO INTERNATIONAL LTD.,
Parent Guarantor


 


BANK OF AMERICA,
N.A.,

as Paying Agent


 


and


 


The Other Lenders Party Hereto


 


BANK OF AMERICA, N.A.,


CITICORP NORTH AMERICA, INC.,


as


Co-Administrative Agents


 


ABN AMRO BANK N.V.,


DEUTSCHE BANK SECURITIES INC.,


JPMORGAN CHASE BANK,


as


Co-Syndication Agents


 


GOLDMAN SACHS CREDIT PARTNERS L.P.,


MORGAN STANLEY BANK,


UBS LOAN FINANCE LLC,


as


Co-Documentation Agents


 


BANC OF AMERICA SECURITIES LLC,


CITIGROUP GLOBAL MARKETS INC.,


as


Joint Lead Arrangers and Joint Bookrunners




 





 

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS

  	
   

  	
   

  
	
  1.01

  	
   

  	
  Defined Terms.

  	
   

  	
   

  
	
  1.02

  	
   

  	
  Other Interpretive
  Provisions.

  	
   

  	
   

  
	
  1.03

  	
   

  	
  Accounting
  Terms.

  	
   

  	
   

  
	
  1.04

  	
   

  	
  References to
  Agreements and Laws.

  	
   

  	
   

  
	
  1.05

  	
   

  	
  Times of
  Day.

  	
   

  	
   

  
	
  1.06

  	
   

  	
  Letter of
  Credit Amounts.

  	
   

  	
   

  
	
  1.07

  	
   

  	
  Exchange Rates;
  Currency Equivalents.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II. THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Loans.

  	
   

  	
   

  
	
  2.02

  	
   

  	
  Borrowings,
  Conversions and Continuations of Loans.

  	
   

  	
   

  
	
  2.03

  	
   

  	
  Letters
  of Credit.

  	
   

  	
   

  
	
  2.04

  	
   

  	
  Prepayments.

  	
   

  	
   

  
	
  2.05

  	
   

  	
  Termination or Reduction of
  Commitments.

  	
   

  	
   

  
	
  2.06

  	
   

  	
  Repayment
  of Loans.

  	
   

  	
   

  
	
  2.07

  	
   

  	
  Interest.

  	
   

  	
   

  
	
  2.08

  	
   

  	
  Fees.

  	
   

  	
   

  
	
  2.09

  	
   

  	
  Computation
  of Interest and Fees.

  	
   

  	
   

  
	
  2.10

  	
   

  	
  Evidence
  of Debt.

  	
   

  	
   

  
	
  2.11

  	
   

  	
  Payments
  Generally.

  	
   

  	
   

  
	
  2.12

  	
   

  	
  Sharing of
  Payments.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III. TAXES, YIELD PROTECTION AND ILLEGALITY

  	
   

  	
   

  
	
  3.01

  	
   

  	
  Taxes.

  	
   

  	
   

  
	
  3.02

  	
   

  	
  Illegality.

  	
   

  	
   

  
	
  3.03

  	
   

  	
  Inability to Determine Rates.

  	
   

  	
   

  
	
  3.04

  	
   

  	
  Increased Cost and Reduced
  Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.

  	
   

  	
   

  
	
  3.05

  	
   

  	
  Funding
  Losses.

  	
   

  	
   

  
	
  3.06

  	
   

  	
  Matters
  Applicable to all Requests for Compensation.

  	
   

  	
   

  
	
  3.07

  	
   

  	
  Survival.

  	
   

  	
   

  
	
  3.08

  	
   

  	
  Substitution
  of Lender.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV. CONDITIONS PRECEDENT TO
  EFFECTIVENESS AND CREDIT EXTENSIONS

  	
   

  	
   

  
	
  4.01

  	
   

  	
  Conditions
  to Effectiveness.

  	
   

  	
   

  
	
  4.02

  	
   

  	
  Conditions to all Credit
  Extensions.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V. REPRESENTATIONS AND WARRANTIES

  	
   

  	
   

  
	
  5.01

  	
   

  	
  Corporate Existence and Power.

  	
   

  	
   

  
	
  5.02

  	
   

  	
  Corporate and Governmental
  Authorization; No Contravention.

  	
   

  	
   

  
	
  5.03

  	
   

  	
  Binding
  Effect.

  	
   

  	
   

  
	
  5.04

  	
   

  	
  Financial Information.

  	
   

  	
   

  
	
  5.05

  	
   

  	
  Litigation.

  	
   

  	
   

  
	
  5.06

  	
   

  	
  Compliance
  with ERISA.

  	
   

  	
   

  
	
  5.07

  	
   

  	
  Environmental
  Matters.

  	
   

  	
   

  
	
  5.08

  	
   

  	
  Insurance.

  	
   

  	
   

  



 


i

















 


	
  5.09

  	
   

  	
  Taxes.

  	
   

  	
   

  
	
  5.10

  	
   

  	
  Subsidiaries.

  	
   

  	
   

  
	
  5.11

  	
   

  	
  Not an Investment
  Company or Public Utility Holding Company.

  	
   

  	
   

  
	
  5.12

  	
   

  	
  Margin Regulations.

  	
   

  	
   

  
	
  5.13

  	
   

  	
  Full
  Disclosure.

  	
   

  	
   

  
	
  5.14

  	
   

  	
  Ownership
  of Property; Liens.

  	
   

  	
   

  
	
  5.15

  	
   

  	
  Obligations
  to Be Pari Passu.

  	
   

  	
   

  
	
  5.16

  	
   

  	
  Tax Shelter
  Regulations.

  	
   

  	
   

  



 


	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI. COVENANTS

  	
   

  	
   

  
	
  6.01

  	
   

  	
  Information.

  	
   

  	
   

  
	
  6.02

  	
   

  	
  Payment of Obligations.

  	
   

  	
   

  
	
  6.03

  	
   

  	
  Maintenance
  of Property; Insurance.

  	
   

  	
   

  
	
  6.04

  	
   

  	
  Conduct of
  Business and Maintenance of Existence.

  	
   

  	
   

  
	
  6.05

  	
   

  	
  Compliance with Laws.

  	
   

  	
   

  
	
  6.06

  	
   

  	
  Inspection of Property, Books and
  Records.

  	
   

  	
   

  
	
  6.07

  	
   

  	
  Limitation on Restrictions
  on Subsidiary Dividends and Other Distributions.

  	
   

  	
   

  
	
  6.08

  	
   

  	
  Total Debt.

  	
   

  	
   

  
	
  6.09

  	
   

  	
  Restrictions
  on Liens.

  	
   

  	
   

  
	
  6.10

  	
   

  	
  Consolidations,
  Mergers and Sales of Assets.

  	
   

  	
   

  
	
  6.11

  	
   

  	
  Transactions with
  Affiliates.

  	
   

  	
   

  
	
  6.12

  	
   

  	
  Restricted Payments.

  	
   

  	
   

  
	
  6.13

  	
   

  	
  Financial Covenants.

  	
   

  	
   

  
	
  6.14

  	
   

  	
  Subsidiary Guarantors.

  	
   

  	
   

  
	
  6.15

  	
   

  	
  Use of
  Proceeds.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VII. EVENTS OF DEFAULT AND REMEDIES

  	
   

  	
   

  
	
  7.01

  	
   

  	
  Events
  of Default.

  	
   

  	
   

  
	
  7.02

  	
   

  	
  Remedies
  Upon Event of Default.

  	
   

  	
   

  
	
  7.03

  	
   

  	
  Application
  of Funds.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII. PAYING AGENT

  	
   

  	
   

  
	
  8.01

  	
   

  	
  Appointment and
  Authorization of Paying Agent.

  	
   

  	
   

  
	
  8.02

  	
   

  	
  Delegation of Duties.

  	
   

  	
   

  
	
  8.03

  	
   

  	
  Liability
  of Paying Agent.

  	
   

  	
   

  
	
  8.04

  	
   

  	
  Reliance
  by Paying Agent.

  	
   

  	
   

  
	
  8.05

  	
   

  	
  Notice of Default.

  	
   

  	
   

  
	
  8.06

  	
   

  	
  Credit
  Decision; Disclosure of Information by Paying Agent.

  	
   

  	
   

  
	
  8.07

  	
   

  	
  Indemnification of Paying
  Agent.

  	
   

  	
   

  
	
  8.08

  	
   

  	
  Paying Agent in its
  Individual Capacity.

  	
   

  	
   

  
	
  8.09

  	
   

  	
  Successor
  Paying Agent.

  	
   

  	
   

  
	
  8.10

  	
   

  	
  Paying
  Agent May File Proofs of Claim.

  	
   

  	
   

  
	
  8.11

  	
   

  	
  Guaranty
  Matters.

  	
   

  	
   

  
	
  8.12

  	
   

  	
  Other Agents; Arrangers and
  Managers.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX. GUARANTEE

  	
   

  	
   

  
	
  9.01

  	
   

  	
  The
  Guarantee.

  	
   

  	
   

  
	
  9.02

  	
   

  	
  Guarantee Unconditional.

  	
   

  	
   

  
	
  9.03

  	
   

  	
  Discharge Only upon Payment
  in Full; Reinstatement in Certain Circumstances.

  	
   

  	
   

  
	
  9.04

  	
   

  	
  Waiver by the Parent.

  	
   

  	
   

  
	
  9.05

  	
   

  	
  Subrogation.

  	
   

  	
   

  



 


ii

















 


	
  9.06

  	
   

  	
  Stay of Acceleration.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X. MISCELLANEOUS

  	
   

  	
   

  
	
  10.01

  	
   

  	
  Amendments,
  Etc.

  	
   

  	
   

  
	
  10.02

  	
   

  	
  Notices
  and Other Communications; Facsimile Copies.

  	
   

  	
   

  
	
  10.03

  	
   

  	
  No Waiver;
  Cumulative Remedies.

  	
   

  	
   

  
	
  10.04

  	
   

  	
  Attorney
  Costs, Expenses and Taxes.

  	
   

  	
   

  
	
  10.05

  	
   

  	
  Indemnification
  by the Borrower.

  	
   

  	
   

  
	
  10.06

  	
   

  	
  Payments
  Set Aside.

  	
   

  	
   

  
	
  10.07

  	
   

  	
  Successors
  and Assigns.

  	
   

  	
   

  
	
  10.08

  	
   

  	
  Confidentiality.

  	
   

  	
   

  
	
  10.09

  	
   

  	
  Set-off.

  	
   

  	
   

  
	
  10.10

  	
   

  	
  Interest
  Rate Limitation.

  	
   

  	
   

  
	
  10.11

  	
   

  	
  Counterparts.

  	
   

  	
   

  
	
  10.12

  	
   

  	
  Integration.

  	
   

  	
   

  
	
  10.13

  	
   

  	
  Survival of Representations
  and Warranties.

  	
   

  	
   

  
	
  10.14

  	
   

  	
  Severability.

  	
   

  	
   

  
	
  10.15

  	
   

  	
  Governing
  Law.

  	
   

  	
   

  
	
  10.16

  	
   

  	
  Judgment
  Currency.

  	
   

  	
   

  
	
  10.17

  	
   

  	
  Waiver
  of Right to Trial by Jury.

  	
   

  	
   

  
	
  10.18

  	
   

  	
  Waiver of Immunities

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIGNATURES

  	
   

  	
   

  



 


iii

















 


	
  SCHEDULES

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1

  	
   

  	
  Pricing Grid

  	
   

  	
   

  
	
  2.01

  	
   

  	
  Commitments and Commitment Percentages

  	
   

  	
   

  
	
  5.05

  	
   

  	
  Litigation

  	
   

  	
   

  
	
  10.02

  	
   

  	
  Paying Agent’s Office, Certain Addresses for
  Notices

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Form of

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Loan Notice

  	
   

  	
   

  
	
  B

  	
   

  	
  Note

  	
   

  	
   

  
	
  C

  	
   

  	
  Assignment and Assumption

  	
   

  	
   

  
	
  D-1

  	
   

  	
  Opinion of General Counsel of the Parent

  	
   

  	
   

  
	
  D-2

  	
   

  	
  Opinion of Special Luxembourg Counsel to the
  Borrower

  	
   

  	
   

  
	
  D-3

  	
   

  	
  Opinion of Special Bermudian Counsel to the Parent

  	
   

  	
   

  
	
  D-4

  	
   

  	
  Opinion of Special New York Counsel to the Obligors

  	
   

  	
   

  
	
  D-5

  	
   

  	
  Opinion of Special New York Counsel to the Paying
  Agent

  	
   

  	
   

  
	
  E

  	
   

  	
  Subsidiary Guaranty

  	
   

  	
   

  



 


iv

















 


THREE-YEAR
CREDIT AGREEMENT


 


AGREEMENT
dated as of December 22, 2003 among TYCO INTERNATIONAL GROUP S.A., a
Luxembourg company (the “Borrower”), TYCO INTERNATIONAL LTD., a Bermuda
company (the “Parent”), each lender from time to time party hereto
(collectively, the “Lenders” and individually, a “Lender”), and
BANK OF AMERICA, N.A.  as Paying Agent (in such capacity, the “Paying
Agent”).


 


The Borrower has
requested that the Lenders provide to the Borrower a three-year revolving
credit facility in the amount of $1,500,000,000, and the Lenders are willing to
do so on and subject to the terms and conditions set forth herein.


 


In
consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:


 


ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS


 


1.01        Defined
Terms.   As used in this Agreement,
the following terms shall have the meanings set forth below:


 


“Accumulated
Other Comprehensive (Loss) Income” on any date means the amount of
“Accumulated Other Comprehensive (Loss) Income” of the Parent and its
Subsidiaries as of the end of the most recently completed fiscal quarter of the
Parent prior to such date of determination determined on a consolidated basis
in accordance with GAAP.


 


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


 


“Affiliate” means, as to any Person, (i) any other Person that directly,
or indirectly through one or more intermediaries, controls such first Person or (ii) any Person which is
controlled by or is under common control with such controlling Person, provided,
that neither the Parent nor any Subsidiary shall be deemed to be an Affiliate
of a Principal Obligor.  As used herein,
the term “control”  means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.


 


“Agent-Related
Persons”   means the Paying Agent, the Co-Administrative
Agents and the Co-Syndication Agents, together with their respective Affiliates
(including, in the case of Bank of America in its capacity as the Paying Agent,
Banc of America Securities LLC as Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.


 


“Aggregate
Commitments” means the Commitments of all the Lenders.


 


“Alternative Currency”
means each of Euro, Sterling or Yen.


 


1

















 


“Alternative Currency
Equivalent” means, at any time, with respect to any amount denominated in
Dollars, the equivalent amount thereof in the applicable Alternative Currency
as determined by the Paying Agent or the relevant L/C Issuer, as the case may
be, at such time on the basis of the Spot Rate (determined in respect of the
most recent Revaluation Date) for the purchase of such Alternative Currency
with Dollars.


 


“Applicable
Facility Fee Rate” means, for any Rating Level Period, the rate per annum
specified in Schedule 1 opposite the reference to such Rating Level
Period under the heading “Applicable Facility Fee Rate”, each change in the
Applicable Facility Fee Rate resulting from a Rating Level Change to be
effective on the date of such Rating Level Change.


 


“Applicable
L/C Margin” means, with respect to any Letter of Credit, for any Rating
Level Period, (i) for any Financial L/C, the rate per annum set forth in Schedule 1
opposite the reference to such Rating Level Period under the heading “L/C
Margin-Financial L/C”, and (ii) for any Performance L/C, the rate per
annum set forth in Schedule 1 opposite the reference to such Rating
Level Period under the heading “L/C Margin-Performance L/C”, each change in the
L/C Margin resulting from a Rating Level Change to be effective on the date of
such Rating Level Change.


 


“Applicable Lending Office”  means,
with respect to any Lender, (i) in the case of its Base Rate Loans, its
Domestic Lending Office and (ii) in the case of its Eurodollar Rate Loans,
its Eurodollar Lending Office.


 


“Applicable
Margin” means, with respect to any Eurodollar Rate Loan, for any Rating
Level Period, the rate per annum set forth in Schedule 1 opposite
the reference to such Rating Level Period under the heading “Applicable
Margin”, each change in the Applicable Margin resulting from a Rating Level
Change to be effective on the date of such Rating Level Change.


 


“Applicable
Time” means, with respect to any borrowings and payments in any Alternative
Currency, the local time in the place of settlement for such Alternative
Currency as may be determined by the Paying Agent or the relevant L/C Issuer,
as the case may be, to be necessary for timely settlement on the relevant date
in accordance with normal banking procedures in the place of payment.


 


“Approved Fund”  means any Fund that is
administered or managed by (i) a Lender, (ii) an Affiliate of a
Lender, or (iii) an entity or an affiliate of an entity that administers
or manages a Lender.


 


“Arrangers”
means, collectively, Banc of America  Securities LLC and Citigroup Global
Markets Inc., in their respective capacities as joint lead arrangers and joint
bookrunners.


 


“Assignment
and Assumption” means an Assignment and Assumption substantially in the
form of Exhibit C.


 


“Attorney
Costs” means and includes all reasonable fees, expenses and disbursements
of any law firm.


 


2

















 


“Attributable
Debt” means, on any date, the sum of (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear as a liability on
the balance sheet of such Person prepared as of such date in accordance with
GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized
amount that would appear as a liability on the balance sheet of such Person
prepared as of such date in accordance with GAAP if the relevant lease were
accounted for as a capital lease.


 


“Availability
Period” means the period from the Closing Date to the earliest of
(a) the Termination Date, (b) the date of termination of the
Commitments pursuant to Section 2.05, and (c) the date of
termination of the Commitment of each Lender and of the obligation of the L/C
Issuers to make L/C Credit Extensions pursuant to Section 7.02.


 


“Bank of
America” means Bank of America, N.A. and its successors.


 


“Base Rate”   means for any day a fluctuating rate per annum equal to the higher
of (a) the Federal Funds Rate plus 1/2 of 1% per annum and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate.” 
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.  Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.


 


“Base Rate
Loan” means, at any time, a Loan that
bears interest based on the Base Rate.


 


“Bermuda
Companies Law”  means every Bermuda statute from time to
time in force concerning companies insofar as the same applies to the Parent.


 


“Borrower”
has the meaning specified in the introductory paragraph hereto.


 


“Borrowing”
means a borrowing consisting of simultaneous Loans of the same Type and, in the
case of Eurodollar Rate Loans, having the same Interest Period made by each of
the Lenders pursuant to Section 2.01.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Paying Agent’s Office is located and, if such
day relates to any Eurodollar Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the London interbank
eurodollar market. 


 


“Cash
Collateralize” has the meaning specified in Section 2.03(g).


 


“Closing
Date” means the date as of which the Paying Agent notifies the Borrower
that all the conditions precedent in Section 4.01 are satisfied or
waived in accordance with Section 4.01 (or, in the case of Section 4.01(b),
waived by the Person entitled to receive the applicable payment).


 


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


 


3

















 


“Co-Administrative
Agents” means Bank of America, N.A. and Citicorp North America, Inc., as
Co-Administrative Agents.


 


“Co-Documentation
Agents” means Goldman Sachs Credit Partners L.P., Morgan Stanley Bank and
UBS Loan Finance LLC, as Co-Documentation Agents.


 


“Co-Syndication
Agents” means ABN Amro Bank N.V., Deutsche Bank Securities Inc. and
JPMorgan Chase Bank, as Co-Syndication Agents.


 


“Commitment”
means, as to each Lender, its obligation to (a) make Loans to the Borrower
pursuant to Section 2.01 and (b) purchase participations in
L/C Obligations, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule 2.01
or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto, as applicable, as such amount may be adjusted from time to time
in accordance with this Agreement.


 


“Commitment
Percentage” means, with respect to each Lender at any time, a fraction
(expressed as a percentage, carried out to the ninth decimal place), the
numerator of which is the amount of the Commitment of such Lender at such time
and the denominator of which is the amount of the Aggregate Commitments at such
time; provided that if the Commitment of each Lender to make Loans and
the obligation of the L/C Issuers to make L/C Credit Extensions have been
terminated pursuant to Section 7.02, then the Commitment of each Lender
shall be determined based on the Commitment Percentage of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. 
The initial Commitment of each Lender is set forth opposite the name of
such Lender on Schedule 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.


 


“Consolidated EBITDA” means, for any fiscal
period, Consolidated Net Income for such period plus the following to
the extent deducted in calculating such Consolidated Net Income:  (a) Consolidated Interest Expense for
such period, (b) Federal, state and local income tax (and franchise tax
imposed in lieu of income tax) expense for such period, (c) the amount of
depreciation and amortization expense deducted in determining Consolidated Net
Income for such period, (d) the amount of rental payments with respect to
Synthetic Lease Obligations deducted in determining such Consolidated Net
Income, and (e) minority interests in other Persons.


 


“Consolidated Funded Debt” means, as of any date of
determination, the aggregate amount of Debt of the Parent and its Consolidated
Subsidiaries (without duplication), determined on a consolidated basis, as of
such date (including Attributable Debt); provided that (i) if a
Permitted Securitization Transaction is outstanding at such date and is
accounted for as a sale of accounts receivable, chattel paper, general
intangibles, or the like, under GAAP, Consolidated Funded Debt determined as
aforesaid shall be adjusted to include the additional Debt, determined on a
consolidated basis as of such date, which would have been outstanding at such
date had such Permitted Securitization Transaction been accounted for as a
borrowing at such date, and (ii) Consolidated Funded Debt shall in any
event include any Preferred Stock held by a Person other than the Parent or a
Wholly-Owned Consolidated Subsidiary, at the higher of its voluntary


 


4

















 


or involuntary liquidation
value; and provided that Consolidated Funded Debt shall not include
Letters of Credit identified by the Borrower to the Paying Agent as Performance
L/Cs or other letters of credit, bank guarantees and similar instruments that
the Borrower has identified to the Paying Agent as supporting Performance
Obligations of the Parent and any of its Subsidiaries; and provided,
further, that Guarantees shall be valued as provided in the definition of
“Guarantee”, and provided that Consolidated Funded Debt shall not
include Debt of a joint venture, partnership or similar entity which is
Guaranteed by the Parent or a Consolidated Subsidiary by virtue of the joint
venture, partnership or similar arrangement with respect to such entity or by
operation of applicable law (and not otherwise) except to the extent that the
aggregate outstanding principal amount of such excluded Debt at any date
exceeds $50,000,000.


 


“Consolidated Interest Expense” means, for any
fiscal period (without duplication), (a) the consolidated interest expense
of the Parent and its Consolidated Subsidiaries for such period plus
(b) if a Permitted Securitization Transaction outstanding during such
period is accounted for as a sale of accounts receivable, chattel paper,
general intangibles or the like under GAAP, the additional consolidated
interest expense that would have accrued during such period had such Permitted
Securitization Transaction been accounted for as a borrowing during such period
plus (c) the amount of dividends payable (in cash) at the rate
stated in the relevant certificate of designation or authorizing documentation
during such period with respect to Preferred Stock of the Parent and its
Subsidiaries, in each case determined on a consolidated basis.


 


“Consolidated Leverage Ratio” means, at any time, the ratio of
(a) Consolidated Funded Debt at such time to (b) Consolidated
EBITDA for the then most recently concluded period of the four consecutive
fiscal quarters of the Parent.


 


“Consolidated
Net Income”  means, for any fiscal period, the consolidated net
income of the Parent and its Consolidated Subsidiaries for such period, after
eliminating therefrom all Extraordinary Gains and Losses.


 


“Consolidated Net Worth” means, at any date, the consolidated
stockholders’ equity of the Parent and its Consolidated Subsidiaries,
determined on a consolidated basis as of such date and adjusted so as to
exclude the effect of Accumulated Other Comprehensive (Loss) Income as of such
date.


 


“Consolidated Subsidiary” means, at
any date, with respect to any Person, any Subsidiary or other entity the
accounts of which would be consolidated with those of such Person in its
consolidated financial statements if such statements were prepared as of such
date in accordance with GAAP, and unless otherwise specified, Consolidated
Subsidiary means a Consolidated Subsidiary of the Parent.


 


“Consolidated
Tangible Assets” means, at any time, the total assets less all Intangible
Assets appearing on the balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of the most recently concluded fiscal quarter of the
Parent, prepared on a consolidated basis in accordance with GAAP.


 


“Credit Extension”
means any Borrowing or L/C Credit Extension.


 


5

















 


“Debt” of any Person means, at any date, without duplication, (i) the
principal of all obligations of such Person for borrowed money,
(ii) the principal of all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all obligations of
such Person to pay the deferred purchase price of property or services recorded
on the books of such Person, except for (a) trade and similar accounts
payable and accrued expenses arising in the ordinary course of business,
(b) employee compensation and pension obligations, and other obligations
arising from employee benefit programs and agreements or other similar employment
arrangements, (c) obligations in respect of trade letters of credit
supporting trade and similar accounts payable arising in the ordinary course of
business, (d) obligations in respect of customer advances received in the
ordinary course of business and (e) obligations in connection with earnout
and holdback agreements in the ordinary course of business, (iv) all
obligations of such Person as lessee which are capitalized on the books of such
Person in accordance with GAAP, (v) all Debt secured by a Lien on any
asset of such Person, whether or not such Debt is otherwise an obligation of
such Person, (vi) Synthetic Lease Obligations, (vii) without
duplication, all Debt of others Guaranteed by such Person; and provided
that the term “Debt” shall not include:


 


(A) Intercompany Debt; or 


 


(B) performance bonds, performance guaranties, letters of credit
(including the Letters of Credit), bank guaranties and similar instruments to
the extent that the outstanding reimbursement obligations of such Person in
respect thereof are collateralized by cash or cash equivalents, which cash or
cash equivalents would not be reflected as assets on a balance sheet of such
Person prepared in accordance with GAAP; or


 


(C)           contingent
reimbursement obligations in respect of performance bonds, performance
guaranties, bank guaranties or letters of credit issued in lieu of performance
bonds or performance guaranties or similar instruments, in each case, incurred
by such Person in the ordinary course of business; or


 


(D)          contingent
reimbursement obligations in respect of trade letters of credit, or similar
instruments, in each case, incurred by such Person in the ordinary course of
business; or


 


(E)           contingent
reimbursement obligations in respect of standby letters of credit or similar
instruments securing self-insurance or fully-fronted insurance obligations of
such Person; or


 


(F)           Nonrecourse
Debt;


 


in each case with respect to
(C), (D) and (E), so long as the underlying obligation supported thereby does
not itself constitute Debt.


 


“Debtor Relief
Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the


 


6

















 


United States or other
applicable jurisdictions from time to time in effect and affecting the rights
of creditors generally.


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would constitute an
Event of Default.


 


“Default
Rate” means, with respect to a Base Rate Loan, the Base Rate plus 2%
per annum; and with respect to a Eurodollar Rate Loan, the Eurodollar Rate
(including any Applicable Margin) otherwise applicable to such Loan plus 2% per
annum, in each case to the fullest extent permitted by applicable Laws.


 


“Defaulting
Lender” means any Lender that (a) has failed to fund any portion of
the Loans or participations in L/C Obligations required to be funded by it
hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Paying Agent or any
other Lender any other amount required to be paid by it hereunder within one
Business Day of the date when due, unless the subject of a good faith dispute,
or (c) has been deemed insolvent or become the subject of a bankruptcy or
insolvency proceeding.


 


“Designated
Officer” means the chairman, president, chief financial officer or
treasurer of the Parent or the treasurer or controller of Tyco International
(US) Inc.


 


“Dollar
Equivalent” means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Paying Agent or the relevant L/C Issuer, as the
case may be, at such time on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such
Alternative Currency.


 


“Dollars”
and “$” mean lawful money of the United States.


 


“Domestic
Lending Office”  means, as to each Lender, its office
located at its address set forth in its Administrative Questionnaire (or
identified in its Administrative Questionnaire as its Domestic Lending Office)
or such other office as such Lender may hereafter designate as its Domestic
Lending Office by notice to the Borrower and the Paying Agent.


 


“Eligible
Assignee” has the meaning specified in Section 10.07(g).


 


“EMU
Legislation” means the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European
currency.


 


“Environmental Laws”  means
any and all Federal, state, local and foreign statutes, laws, judicial
decisions, regulations, ordinances, rules, judgments, orders, decrees, plans,
injunctions, permits, concessions, grants, franchises, licenses, agreements and
other governmental restrictions relating to the environment or the effect of
the environment on human health or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Substances or wastes into the environment
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal,


 


7

















 


transport or handling of
pollutants, contaminants, Hazardous Substances or wastes or the clean-up or
other remediation thereof.


 


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


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, or any
successor statute.


 


“ERISA Group”  means any Obligor and all members of a
controlled group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with any Obligor, are treated as a single
employer under Section 414 of the Code.


 


“Euro”
means the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.


 


“Eurodollar
Lending Office” means, as to
each Lender, its office, branch or affiliate located at its address set
forth in its Administrative Questionnaire (or identified in its Administrative
Questionnaire as its Eurodollar Lending Office) or such other office, branch or
affiliate of such Lender as it may hereafter designate as its Eurodollar
Lending Office by notice to the Borrower and the Paying Agent.


 


“Eurodollar
Rate” means for any Interest Period with respect to any Eurodollar Rate
Loan:


 


(a)           the
rate per annum equal to the rate determined by the Paying Agent to be the
offered rate that appears on the page of the Telerate screen (or any successor
thereto) that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or


 


(b)           if
the rate referenced in the preceding clause (a) does not appear on such
page or service or such page or service shall not be available, the rate per
annum equal to the rate determined by the Paying Agent to be the offered rate
on such other page or other service that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or


 


8

















 


(c)           if
the rates referenced in the preceding clauses (a) and (b) are not
available, the rate per annum determined by the Paying Agent as the rate of
interest at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the Eurodollar
Rate Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America’s London
Branch to major banks in the London interbank eurodollar market at their
request at approximately 4:00 p.m. (London time) two Business Days prior
to the first day of such Interest Period.


 


“Eurodollar
Rate Loan” means, at any time, a Loan that bears interest at a rate based
on the Eurodollar Rate.


 


“Eurodollar
Reserve Percentage”  means, for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of “Eurocurrency liabilities” (or in respect of any other category
of liabilities which includes deposits by reference to which the interest rate
on Eurodollar Loans is determined or any category of extensions of credit or
other assets which includes loans by a non-United States office of any Lender
to United States residents).


 


“Event of Default” has the meaning specified in
Section 7.01. 


 


“Existing Credit Agreements” means, collectively, (a) the
Five-Year Credit Agreement dated as of February 7, 2001, among the Borrower,
the Parent, JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank) as
Administrative Agent and the lenders party thereto and (b) the 364-Day
Revolving Credit Agreement dated as of January 31, 2003, among the Borrower,
the Parent, Sensormatic Electronics Corporation, Scott Technologies, Inc., and
Innerdyne, Inc., as Parent Subsidiary Guarantors, and Bank of America, N.A., as
Administrative Agent and the lenders party thereto.


 


“Existing
Litigation” has the meaning set forth in Section 5.05.


 


“Extraordinary
Gains and Losses” means and
includes, for any fiscal period, (i) all extraordinary gains and losses
and all other material (whether considered individually or in the aggregate)
nonrecurring non-cash items of the Parent and its Consolidated Subsidiaries for
such period, determined on a consolidated basis, (ii) gains or losses from
the discontinuance of operations and gains or losses of the Parent and its
Consolidated Subsidiaries for such period resulting from the sale, conversion
or other disposition of material assets of the Parent or any Consolidated
Subsidiary other than in the ordinary course of business, (iii) cash
payments pursuant to judgments in and/or settlements of the Existing
Litigation, and (iv) cash charges incurred after September 30, 2003 relating to
divestitures and restructurings to the extent that the aggregate amount of such
charges does not exceed $500,000,000.


 


“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


 


9

















 


Reserve Bank of New York 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 rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as determined by the
Paying Agent.


 


“Fee
Letters” means, collectively, (a) the letter dated as of November 3,
2003 between the Borrower, the Arrangers and the Co-Administrative Agents and
(b) the letter dated as of December 9, 2003 between the Borrower and the
Paying Agent.


 


“Financial
L/C” means a standby Letter of Credit that is not a Performance L/C.


 


“Financing
Documents” means this Agreement, each Note, the Fee Letters and each
Subsidiary Guaranty (if any).


 


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


 


“Fund”
has the meaning set forth in Section 10.07(g).


 


“GAAP”
means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination.


 


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


 


“Granting Lender” has the meaning specified in Section
10.07(h).


 


“Guarantee”
means, as to any Person (without duplication) (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or other obligation payable or performable by another
Person (excluding the Borrower or any Affiliate of the Borrower) (the “primary
obligor”) in any manner, whether directly or indirectly, by way of
guarantee, standby letter of credit or otherwise, and including any obligation
of such Person, direct or indirect, (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Debt or other obligation, (ii) to
purchase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Debt or other obligation of the payment or
performance of such Debt or other obligation, (iii) to maintain working
capital, equity capital or any other financial statement condition or liquidity
or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Debt or other obligation, or (iv) entered into for
the purpose of assuring in any other manner the


 


10

















 


obligee in respect of such Debt
or other obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or (b) any Lien
on any assets of such Person securing any Debt or other obligation of any other
Person, whether or not such Debt or other obligation is assumed by such Person
(and, if not so assumed, the amount of any such Guarantee shall be equal to the
lesser of (i) the value of the assets subject to such Lien and (ii) the amount
of the relevant Debt or other obligation), excluding however
endorsements of instruments for deposit or collection in the ordinary course of
business.  The amount of any Guarantee
shall be deemed to be an amount equal to the lesser of (i) the stated or
determinable amount of the related primary obligation, or portion thereof, in
respect of which such Guarantee is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the guaranteeing Person in good faith and (ii) the stated maximum amount
of such Guarantee.  The term “Guarantee”
as a verb has a corresponding meaning.


 


“Guarantors”
means, collectively, the Parent and each Subsidiary Guarantor.


 


“Hazardous Substances” means any toxic, radioactive, caustic or otherwise
hazardous substance, including petroleum, its derivatives, by-products and
other hydrocarbons, or any substance having any constituent elements displaying
any of the foregoing characteristics.


 


“Indemnified
Liabilities” has the meaning set forth in Section 10.05.


 


“Indemnitees”
has the meaning set forth in Section 10.05.


 


“Information”
has the meaning set forth in Section 10.08.


 


“Intangible Assets” means, at any date, the amount (if any) which would be stated
under the heading “Goodwill and Other Intangible Assets, Net” or under any
other heading relating to intangible assets separately listed, in each case, on
the face of a balance sheet of the Parent and its Consolidated Subsidiaries
prepared on a consolidated basis as of such date.


 


“Intercompany
Debt” means (i) Debt of the Parent owed to a Subsidiary and (ii) Debt of a
Subsidiary owed to the Parent or another Subsidiary.


 


“Interest
Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Loan and the Termination Date, provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds
three months, the respective dates within such Interest Period that fall every
three months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan, each Quarterly Payment Date
and the Termination Date.


 


“Interest
Period” means, with respect to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to
or continued as a Eurodollar Rate Loan and ending on the date one, two, three
or six months thereafter, as selected by the Borrower in its Loan Notice, or such other period as is twelve months or
less as requested by the Borrower and agreed to by all the Lenders; provided
that:


 


(a)           any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such


 


11

















 


Business Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;


 


(b)           any
Interest Period 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 the
calendar month at the end of such Interest Period; and


 


(c)           any
Interest Period that would otherwise extend beyond the Termination Date shall
end on the Termination Date.


 


“IRS”
means the United States Internal Revenue Service. 


 


“Laws”
means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.


 


“L/C
Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Commitment
Percentage.  All L/C Advances shall be denominated in
Dollars.


 


“L/C Borrowing”
means an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a
Borrowing.  All L/C Borrowings shall be denominated in
Dollars.


 


“L/C Credit
Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the renewal or increase of
the amount thereof.


 


“L/C
Issuers” means Bank of America in its capacity as issuer of Letters of
Credit hereunder and any other Lender that with the consent of the Paying Agent
agrees to issue Letters of Credit hereunder, and their respective successors as
issuers of Letters of Credit hereunder.


 


“L/C
Obligations” means, as at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including (without duplication) all L/C Borrowings.


 


“Lender”
has the meaning specified in the introductory paragraph hereto and, as the
context requires, includes each L/C Issuer.


 


“Letter of
Credit” means any letter of credit issued hereunder.  A Letter of Credit may be a commercial
letter of credit or a standby letter of credit.  Any commercial letter of credit issued hereunder shall be payable
on sight.


 


12

















 


“Letter of
Credit Application” means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the
relevant L/C Issuer and agreed to by the Borrower.


 


“Letter of
Credit Sublimit” means an amount equal to  $500,000,000.  The Letter
of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments.


 


“Letter of
Credit Termination Date” means the day that is thirty days prior to the
Termination Date (or, if such day is not a Business Day, the next preceding
Business Day).


 


“Lien”
means any mortgage, pledge, hypothecation, encumbrance, lien (statutory or
other), charge, or other security interest, or any preferential arrangement
having substantially the same effect as a security interest (including any
conditional sale or other title retention agreement (not including an operating
lease) and any financing lease having substantially the same economic effect as
any of the foregoing).


 


“Loan”
means each loan made pursuant to Section 2.01.


 


“Loan
Notice” has the meaning specified in Section 2.02.


 


“Material Adverse Change” or “Material Adverse Effect” means a material adverse change in or
material adverse effect on (i) the business, assets, liabilities (actual or
contingent), consolidated financial position or consolidated results of
operations of the Parent and its Consolidated Subsidiaries taken as a whole,
(ii) the ability of the Obligors to perform their obligations under the
Financing Documents, or (iii) the rights and remedies of the Paying Agent or
any Lender under the Financing Documents.


 


“Material Debt”  means Debt in an aggregate
outstanding principal amount exceeding $50,000,000.


 


“Material Plan” means at any time a Plan or Plans
having aggregate Unfunded Liabilities in excess of $25,000,000.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor to its business of
rating debt securities.


 


“Moody’s
Rating” means, at any time, the rating of the Borrower’s senior, unsecured,
long-term indebtedness for borrowed money that is not guaranteed by any other
Person or subject to any other credit enhancement.


 


“Multiemployer Plan” means at any time a
multiemployer plan within the meaning of Section 4001(a)(3) of ERISA either (a)
to which any member of the ERISA Group is then making or accruing an obligation
to make contributions or (b) has at any time within the preceding five plan
years been maintained, or contributed to, by any Person who was at such time a
member of the ERISA Group for employees of any Person who was at such time a
member of the ERISA Group.


 


13

















 


“Nonrecourse
Debt” means, at any time, all Debt of Subsidiaries of the Parent
outstanding at such time incurred on terms that recourse may be had to such
Subsidiary only to the extent of enforcing security over those assets acquired,
financed, developed or exploited with the proceeds of such Debt and not by way
of action against such Subsidiary (nor against the Parent or any other Subsidiary
of the Parent) as a general and unconditional obligor of such Debt, provided
that, such Debt shall not exceed the cost to acquire, finance, develop or
exploit such assets (including associated costs and expenses).


 


“Note”
means a promissory note made by the Borrower in favor of a Lender evidencing
Loans made by such Lender, substantially in the form of Exhibit B.


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Obligor arising under any Financing Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Obligor or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.


 


“Obligors”
means, at any time, collectively, the Borrower, the Parent and each Subsidiary
Guarantor at such time.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any
partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.


 


“Other
Taxes” has the meaning specified in Section 3.01(b).


 


“Outstanding
Amount” means (i) with respect to Loans on any date, the aggregate
outstanding principal amount thereof after giving effect to any Borrowings and
prepayments or repayments of Loans occurring on such date, and (ii) with
respect to any L/C Obligations on any date, the Dollar Equivalent of the
aggregate amount of such L/C Obligations on such date after giving effect to
any L/C Credit Extension occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date, including as a result
of any reimbursements of outstanding unpaid drawings under any Letters of
Credit or any reductions in the maximum amount available for drawing under
Letters of Credit taking effect on such date.


 


“Parent”
has the meaning specified in the introductory paragraph hereto.


 


“Participant”
has the meaning specified in Section 10.07(d).


 


14

















 


“Participating
Member State” means each state so described in any EMU Legislation.


 


“Paying
Agent” means Bank of America in its capacity as Paying Agent under any of
the Financing Documents, or any successor paying agent.


 


“Paying
Agent’s Office” means the Paying Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account
as the Paying Agent may from time to time notify the Borrower and the Lenders.


 


“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to any
or all of its functions under ERISA.


 


“Performance
L/C” means a Letter of Credit supporting a Performance Obligation.


 


“Performance
Obligation” means (i) performance or warranty obligations under (or in
connection with a contract bid for) supply, service, construction or other
contracts, including, without limitation, bid and performance bonds or
guaranties relating to the foregoing obligations and contracts or (ii) letters
of credit or bank guarantees that support the obligations referred to in clause
(i) or provide credit support for the obligations of a Person in connection
with advance payments made to such Person.


 


“Permitted Acquired Debt”  means
Debt of a Person that exists at the time such Person becomes a Subsidiary or at
the time the Parent or a Subsidiary acquires all or substantially all of the
assets of such Person if such Debt is assumed by the Parent or such Subsidiary
and was not created in contemplation of any such event (“Acquired Debt”),
and which:


 


(a)           remains outstanding no more than 180 days
after the date such Person becomes a Subsidiary (the “Acquisition Date”); or


 


(b)           remains outstanding more than 180 days
after the Acquisition Date, but only if
(i) 180 days after the Acquisition Date, the senior unsecured debt of
the Borrower is rated at least BBB- by S&P or Baa3 by Moody’s, (ii) such
Acquired Debt by its terms is not callable or redeemable prior to its stated
maturity within 180 days after the Acquisition Date and (iii) such Person in
good faith has made or caused to be made an offer to acquire all such Acquired
Debt, including, without limitation, an offer
to exchange such Acquired Debt for securities of the Borrower or the Parent, on
terms which, in the opinion of an independent investment banking firm of
national reputation and standing, are consistent with market practices in
existence at the time for offers of a similar nature, provided  that the expiration date of
any such offer shall not be later than the date 180 days after the
Acquisition Date, and provided  further  that if Acquired Debt which
becomes Permitted Acquired Debt under this clause (b) thereafter becomes
callable or redeemable prior to its stated maturity, such Acquired Debt shall
cease to be Permitted Acquired Debt under this clause (b) 90 days after it
becomes so callable or redeemable;  or


 


(c)           remains outstanding
more than 180 days after the Acquisition Date and is not Permitted Acquired
Debt under clause (b), but only if and to the extent that the


 


15

















 


aggregate
outstanding principal amount of Permitted Acquired Debt under this clause (c)
at no time exceeds 5%  of
the Consolidated Tangible Assets of the Parent.


 


“Permitted Securitization Transaction”  means
any sale or sales of any accounts receivable, general intangibles, chattel
paper or other financial assets and related rights and assets of the Parent
and/or any of its Subsidiaries, and financing secured by the assets so sold,
pursuant to which the Parent and its Subsidiaries realize aggregate net
proceeds of not more than $1,500,000,000, including, without limitation, any revolving
purchase(s) of such assets where the maximum aggregate uncollected purchase
price (exclusive of any deferred purchase price) therefor does not exceed
$1,500,000,000.


 


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


 


“Plan”  means at any time an employee pension
benefit plan (other than a Multiemployer Plan) which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
and either (i) is maintained, or contributed to, by any member of the ERISA
Group for employees of any member of the ERISA Group or (ii) has at any time
within the preceding five years been maintained, or contributed to, by any
Person which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.


 


“Preferred
Stock” means any preferred and/or redeemable capital stock of the Parent or
any Subsidiary, as the case may be, that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder thereof), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or redeemable at the option of the holder, in whole or in part, on or prior to
the Termination Date.


 


“Principal
Obligor” means each of the Borrower and the Parent.


 


“Property” means any interest of any kind in
any property or assets, whether real, mixed or personal and whether tangible or
intangible.


 


“Quarterly
Payment Dates” means the last Business Day of each March, June,
September and December.


 


“Rating
Level” refers to pricing hereunder determined on the basis of the
applicable Rating Level Period.


 


“Rating
Level Period” means a Rating
Level 1 Period, a Rating Level 2 Period, a Rating Level 3 Period, a Rating
Level 4 Period, a Rating Level 5 Period or a Rating Level 6 Period; provided
that:


 


(i)            “Rating
Level 1 Period” means a period during which the Moody’s Rating is at or
above A3 or the S&P Rating is at or above A-;


 


16

















 


(ii)           “Rating
Level 2 Period” means a period that is not a Rating Level 1 Period, during
which the Moody’s Rating is at or above Baa1 or the S&P Rating is at or
above BBB+;


 


(iii)          “Rating Level 3 Period” means a period
that is not a Rating Level 1 Period or a Rating Level 2 Period, during which
the Moody’s Rating is at or above Baa2 or the S&P Rating is at or above
BBB;


 


(iv)          “Rating
Level 4 Period” means a period that is not a Rating Level 1 Period, a
Rating Level 2 Period or a Rating Level 3 Period, during which the Moody’s
Rating is at or above Baa3 or the S&P Rating is at or above BBB-; 


 


(v)           “Rating
Level 5 Period” means a period that is not a Rating Level 1 Period, a
Rating Level 2 Period, a Rating Level 3 Period or a Rating Level 4 Period,
during which the Moody’s Rating is at or above Ba1 or the S&P Rating is at
or above BB+; and


 


(vi)          “Rating
Level 6 Period” means a period that is not a Rating Level 1 Period, a
Rating Level 2 Period, a Rating Level 3 Period, a Rating Level 4 Period or a
Rating Level 5 Period;


 


and provided, further,
that if the Moody’s Rating and the S&P Rating differ by more than one
Rating Level, then the applicable Rating Level Period shall be one Rating Level
higher than the Rating Level resulting from the application of the lower of
such ratings (for which purpose Rating Level 1 is the highest and Rating Level
5 is the lowest); and provided, further, that any period during which
there is no Moody’s Rating and there is no S&P Rating shall be a Rating
Level 6 Period.


 


“Rating
Level Change” means a change in the Moody’s Rating or the S&P Rating
that results in a change from one Rating Level Period to another, each Rating
Level Change to be deemed to take effect on the date on which the relevant
change in rating is first publicly announced by Moody’s or S&P.


 


“Refinancing”
means, with respect to any financing, any instrument or agreement amending,
restating, supplementing, extending, renewing, refunding, refinancing,
replacing or otherwise modifying, in whole or in part, the documents governing
such financing (and “Refinance” shall have a correlative meaning).


 


“Register”
has the meaning set forth in Section 10.07(c).


 


“Request
for Credit Extension” means (a) with respect to a Borrowing, conversion or
continuation of Loans, a Loan Notice and (b) with respect to an L/C Credit
Extension, a Letter of Credit Application.


 


“Required
Lenders” means, at any time, Lenders having more than 50% of the Aggregate Commitments or, if the commitment
of each Lender to make Loans and the obligation of the L/C Issuers to make L/C
Credit Extensions have been terminated pursuant to Section 7.02, Lenders
holding in the aggregate more than 50%
of the Total Outstandings (with the aggregate amount of


 


17

















 


each Lender’s risk
participation and funded participation in L/C Obligations being deemed “held”
by such Lender for purposes of this definition); provided that the
Commitment of, and the portion of the Total Outstandings held or deemed held
by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Responsible
Officer” means any of the following: 
(i) the Chairman, President, Vice President and Chief Financial Officer,
Treasurer and Secretary of the Parent or (ii) the Chairman, President, Vice
President and Chief Financial Officer, Treasurer or Secretary of the Borrower
or a Managing Director of the Borrower.


 


“Restricted
Payment” means (a) any dividend or other distribution on any shares of the
Parent’s Stock (except to the extent such dividends and distributions are
payable in shares of its Stock or Stock Equivalents) or (b) any payment (except
to the extent payable in shares of the Parent’s Stock or Stock Equivalents) on
account of the purchase, redemption, retirement or acquisition of (i) any
shares of the Parent’s Stock or (ii) any option, warrant or other right to
acquire shares of the Parent’s Stock.


 


“Revaluation
Date” means, with respect to any Letter of Credit, each of the
following:  (i) the date of issuance of
such Letter of Credit if denominated in an Alternative Currency, (ii) each date
of an amendment of such Letter of Credit having the effect of increasing the
amount thereof (solely with respect to the increased amount), (iii) the date of
any payment by the relevant L/C Issuer denominated in an Alternative Currency,
and (iv) such additional dates as the Paying Agent or such L/C Issuer shall
determine.


 


“S&P”
means Standard & Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor to its business of rating debt securities.


 


“S&P
Rating” means, at any time, the rating of the Borrower’s senior, unsecured,
long-term indebtedness for borrowed money that is not guaranteed by any other
Person or subject to any other credit enhancement.


 


“SEC”
means the SEC, or any Governmental Authority succeeding to any of its principal
functions.


 


“Significant
Subsidiary”  means, at any date, (a) any Consolidated
Subsidiary which, including its consolidated subsidiaries, meets any of the
following conditions:


 


(i)            the proportionate
share attributable to such Consolidated Subsidiary of the total assets of the
Parent and its Consolidated Subsidiaries (after intercompany eliminations)
exceeds 15% of the total assets of the Parent and its Consolidated
Subsidiaries, determined on a consolidated basis as of the end of the most
recently completed fiscal year; or


 


18

















 


(ii)           the Parent’s and its
Consolidated Subsidiaries’ equity in the income of such Consolidated Subsidiary
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principle exceeds 15% of such
income of the Parent and its Consolidated Subsidiaries, determined on a
consolidated basis for the most recently completed fiscal year; and


 


(b)           any other Subsidiary
which is an Obligor.


 


“SPC” has the
meaning specified in Section 10.07(h).


 


“Spot Rate”
for a currency means the rate determined by the Paying Agent or an L/C Issuer,
as applicable, to be the rate quoted by the Person acting in such capacity as
the spot rate for the purchase by such Person of such currency with another
currency through its principal foreign exchange trading office at approximately
11:00 a.m. on the date two Business Days prior to the date as of which the
foreign exchange computation is made; provided  that the Paying Agent or
such L/C Issuer may obtain such spot rate from another financial institution
designated by the Paying Agent or such L/C Issuer if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency; and provided  further that such L/C Issuer may
use such spot rate quoted on the date as of which the foreign exchange
computation is made in the case of any Letter of Credit denominated in an
Alternative Currency.


 


“Sterling” means
the lawful currency of the United Kingdom.


 


“Stock”
means, with respect to any Person, any capital stock or equity securities of or
other ownership interests in such Person.


 


“Stock
Equivalents” means, with respect to any Person, options, warrants, calls or
other rights entered into or issued by such Person to acquire any Stock of, or
securities convertible into or exchangeable for Stock of, such Person.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other entity of which a majority of the shares of securities or
other interests having ordinary voting power for the election of directors or
other governing body (other than securities or interests having such power only
by reason of the happening of a contingency) are at the time beneficially
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references
herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or
Subsidiaries of the Parent.


 


“Subsidiary
Guarantor” means each Subsidiary that has executed a Subsidiary Guaranty
pursuant to Section 6.14.


 


“Subsidiary
Guaranty” means a guaranty entered into by a Subsidiary in substantially the
form of Exhibit E.


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under a
so-called synthetic, off-balance sheet or tax retention lease.


 


19

















 


“Taxes”
has the meaning set forth in Section 3.01(a).


 


“Termination
Date” means December 22, 2006 (or if such day is not a Business Day, the
next preceding Business Day).


 


“Total
Outstandings” means the aggregate Outstanding Amount of all Loans and all
L/C Obligations.


 


“Type”
means, with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.


 


“Unfunded Liabilities”  means,
with respect to any Plan at any time, the amount (if any) by which (i) the
value of all benefit liabilities under such Plan, determined on a plan termination
basis using the assumptions prescribed by the PBGC for purposes of Section 4044
of ERISA, exceeds (ii) the fair market value of all Plan assets allocable to
such liabilities under Title IV of ERISA (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation date for
such Plan, but only to the extent that such excess represents a potential
liability of a member of the ERISA Group to the PBGC or to any other Person
under Title IV of ERISA.


 


“United
States” and “U.S.” mean the United States of America.


 


“Unreimbursed
Amount” has the meaning set forth in Section 2.03(c)(i).


 


“Wholly-Owned
Consolidated Subsidiary” means any Consolidated Subsidiary all of the
shares of capital stock or other ownership interests of which (except
directors’ qualifying shares and investments by foreign nationals mandated by
applicable law) are at the time beneficially owned, directly or indirectly, by
the Parent.


 


“Yen”
means the lawful currency of Japan.


 


1.02        Other Interpretive Provisions.   With reference to this Agreement and
each other Financing Document, unless otherwise specified herein or in such
other Financing Document:


 


(a)           The meanings of defined
terms are equally applicable to the singular and plural forms of the defined terms.


 


(b)           (i)            The words “herein,” “hereto,”
“hereof” and “hereunder” and words of similar import when used in
any Financing Document shall refer to such Financing Document as a whole and
not to any particular provision thereof.


 


(ii)           Article,
Section, Exhibit and Schedule references are to the Financing Document in which
such reference appears.


 


(iii)          The term “including” is by way of
example and not limitation.


 


20

















 


(iv)          The
term “documents” includes any and all instruments, documents,
agreements, certificates, notices, reports, financial statements and other
writings, however evidenced, whether in physical or electronic form.


 


(c)           In the computation of
periods of time from a specified date to a later specified date, the word “from”
means “from and including”, the words “to” and “until”
each mean “to but excluding”, and the word “through” means “to
and including.”


 


(d)           Section headings herein
and in the other Financing Documents are included for convenience of reference
only and shall not affect the interpretation of this Agreement or any other
Financing Document.


 


1.03        Accounting Terms. 



 


(a)           All accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP, as in effect from time to time, applied in a
manner consistent (except for changes concurred in by the Parent’s independent
auditors) with that used in preparing the financial statements referred to in Section 5.04(a),
except as otherwise specifically prescribed herein.


 


(b)           If at any time any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Financing Document, and either the Borrower or the
Required Lenders shall so request, the Paying Agent, the Lenders and the
Borrower shall negotiate in good faith to amend such ratio or requirement to preserve
the original intent thereof in light of such change in GAAP (subject to the
approval of the Required Lenders); provided  that, until so
amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Paying Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP.


 


1.04        References to Agreements and Laws.  Unless otherwise expressly provided
herein, (a) references to Organization Documents, agreements (including the
Financing Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and
other modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Financing Document; and (b) references to any Law shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Law.


 


1.05        Times of Day.   Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or
standard, as applicable).


 


1.06        Letter of Credit Amounts.   Unless otherwise specified, all references herein to the
amount of a Letter of Credit at any time shall be deemed to mean the maximum
face amount of such Letter of Credit (or, in the case of a Letter of Credit
denominated in an Alternative


 


21

















 


Currency, the Dollar Equivalent
thereof) after giving effect to (i) all increases thereof contemplated by
such Letter of Credit or the Letter of Credit Application therefor, whether or
not such maximum face amount is in effect at such time, and (ii) any
permanent reductions thereof.


 


1.07        Exchange Rates; Currency Equivalents.   (a)  The Paying Agent or the relevant L/C Issuer, as applicable, shall
determine the Spot Rates as of each Revaluation Date to be used for calculating
Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts
denominated in Alternative Currencies. 
Such Spot Rates shall become effective as of such Revaluation Date and
shall be the Spot Rates employed in converting any amounts between the
applicable currencies until the next Revaluation Date to occur.  Except for purposes of financial statements
delivered by Loan Parties hereunder or calculating financial covenants
hereunder or except as otherwise provided herein, the applicable amount of any
currency (other than Dollars) for purposes of the Loan Documents shall be such
Dollar Equivalent amount as so determined by the Paying Agent or such L/C
Issuer, as applicable.


 


(b)           Wherever
in this Agreement in connection with the issuance, amendment or extension of a
Letter of Credit, an amount, such as a required minimum or multiple amount, is
expressed in Dollars, but such Letter of Credit is denominated in an
Alternative Currency, such amount shall be the relevant Alternative Currency
Equivalent of such Dollar amount (rounded to the nearest unit of such
Alternative Currency, with 0.5 of a unit being rounded upward), as determined
by the Paying Agent or the relevant L/C Issuer, as the case may be.


 


ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01        Loans.


 


(a)           Each Lender severally
agrees, on the terms and conditions set forth in this Agreement, to make loans
to the Borrower pursuant to this Section 2.01 from time to time, on
any Business Day during the Availability Period, in an aggregate amount not to
exceed at any time outstanding the amount of such Lender’s Commitment; provided,
however, that after giving effect to any Borrowing, (i) the Total
Outstandings shall not exceed the Aggregate Commitments, and (ii) the
Outstanding Amount of the Loans of any Lender plus such Lender’s
Commitment Percentage of the Outstanding Amount of all L/C Obligations shall
not exceed such Lender’s Commitment.


 


(b)           Within the limits of
each Lender’s Commitment, and subject to the other terms and conditions hereof,
the Borrower may borrow under this Section 2.01, prepay under Section 2.04,
and reborrow under this Section 2.01.


 


(c)           Loans may be Base Rate
Loans or Eurodollar Rate Loans, as further provided herein.


 


(d)           Each Borrowing under
this Section 2.01 shall be in an aggregate amount of U.S.$10,000,000 or
a larger multiple of U.S.$1,000,000 (except that any such Borrowing may be


 


22

















 


in the aggregate amount of the
available Commitments) and shall be made from the several Lenders ratably in
proportion to their respective Commitments.


 


2.02        Borrowings, Conversions and Continuations of Loans.


 


(a)           (i)            Each Borrowing, each conversion of Loans
from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrower’s irrevocable notice to the Paying Agent (each,
a “Loan Notice”).


 


(ii)           Each
Loan Notice must be received by the Paying Agent not later than 11:00 a.m. (A)
three Business Days prior to the requested date of any Borrowing of, conversion
to or continuation of Eurodollar Rate Loans, and (B) on the requested date of
any Borrowing of Base Rate Loans; provided, however, that if the
Borrower wishes to request Eurodollar Rate Loans having an Interest Period
other than one, two, three or six months in duration as provided in the
definition of “Interest Period”, the applicable notice must be received by the
Paying Agent not later than 11:00 a.m. four Business Days prior to the
requested date of such Borrowing, conversion or continuation, whereupon the
Paying Agent shall give prompt notice to the Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them;
and not later than 8:00 a.m., three Business Days before the requested
date of such Borrowing, conversion or continuation, the Paying Agent shall
notify the Borrower whether or not the requested Interest Period has been
agreed to by all the Lenders.


 


(iii)          Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be
in a principal amount of $10,000,000 or a whole multiple of $1,000,000 in
excess thereof.


 


(iv)          Each
Loan Notice shall be in substantially the form of Exhibit A and
shall specify (A) whether the Borrower is requesting a Borrowing, a conversion
of Loans from one Type to the other, or a continuation of Eurodollar Rate
Loans, (B) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (C) the principal amount of
Loans to be borrowed, converted or continued, (D) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (E) if applicable,
the duration of the Interest Period with respect thereto.  If the Borrower fails to specify a Type of
Loan in a Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be
made as, or converted to, Base Rate Loans. 
Any such automatic conversion to Base Rate Loans shall be effective as
of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans.


 


(v)           If
the Borrower requests a Borrowing of, conversion to, or continuation of
Eurodollar Rate Loans in any such Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.


 


(b)           (i)            Following receipt of a Loan Notice, the
Paying Agent shall promptly notify each Lender of the amount of its pro  rata
share of the applicable Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Paying


 


23

















 


Agent shall
notify each Lender of the details of any automatic conversion to Base Rate
Loans described in the preceding subsection.


 


(ii)           Each
Lender shall make the amount of its Loan constituting part of a Borrowing
available to the Paying Agent in immediately available funds at the Paying
Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice.


 


(iii)          Upon
satisfaction of the applicable conditions set forth in Section 4.02
(and, if such Borrowing is the initial Credit Extension, Section 4.01),
the Paying Agent shall make all funds so received available to the Borrower in
like funds as received by the Paying Agent either by (A) crediting the account
of the Borrower on the books of Bank of America with the amount of such funds
or (B) wire transfer of such funds, in each case in accordance with
instructions provided to (and reasonably acceptable to) the Paying Agent by the
Borrower; provided, however, that if, on the date the Loan Notice
with respect to such Borrowing is given by the Borrower, there are L/C
Borrowings outstanding, then the proceeds of such Borrowing shall be applied, first,
to the payment in full of any such L/C Borrowings, and second, to the
Borrower as provided above.


 


(c)           (i)            Except as otherwise provided herein, a
Eurodollar Rate Loan may be continued or converted only on the last day of an
Interest Period for such Eurodollar Rate Loan.


 


(ii)           During
the existence of a Default, no Loans may be requested as, converted to or
continued as Eurodollar Rate Loans without the consent of the Required Lenders.


 


(d)           The Paying Agent shall
promptly notify the Borrower and the Lenders of the interest rate applicable to
any Interest Period for Eurodollar Rate Loans upon determination of such
interest rate.  The determination of the
Eurodollar Rate by the Paying Agent shall be conclusive in the absence of
manifest error.  At any time that Base
Rate Loans are outstanding, the Paying Agent shall notify the Borrower and the
Lenders of any change in Bank of America’s prime rate used in determining the
Base Rate promptly following the public announcement of such change.


 


(e)           After giving effect to
all Borrowings, all conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more than ten
Interest Periods in effect with respect to Loans.


 


2.03        Letters of Credit.


 


(a)           The Letter of Credit
Commitment.


 


(i)            (A)
Each L/C Issuer agrees, on the terms and conditions set forth in this
Agreement, in reliance upon the agreements of the other Lenders set forth in
this Section 2.03, (1) from time to time on any Business Day during
the period from the Closing Date until the Letter of Credit Termination Date,
to issue Letters of Credit, each to be denominated in Dollars or in one or more
Alternative Currencies, for the account of


 


24

















 


the Borrower
or any Subsidiary, and to amend or renew Letters of Credit previously issued by
it, in accordance with subsection (b) below, and (2) to honor sight drafts
under the Letters of Credit issued by it; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrower; provided
that no L/C Issuer shall be obligated to make any L/C Credit Extension with
respect to any Letter of Credit, and no Lender shall be obligated to
participate in any Letter of Credit if as of the date of such L/C Credit
Extension, (x) the Total Outstandings would exceed the Aggregate Commitments,
(y) the aggregate Outstanding Amount of the Loans of any Lender, plus
such Lender’s Commitment Percentage of the Outstanding Amount of all L/C
Obligations would exceed such Lender’s Commitment or (z) the Outstanding Amount
of the L/C Obligations would exceed the Letter of Credit Sublimit.  


 


(ii)           Within
the foregoing limits, and subject to the terms and conditions hereof, the
Borrower’s ability to obtain Letters of Credit shall be fully revolving, and
accordingly the Borrower may, during the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.


 


(iii)          No
L/C Issuer shall be under any obligation to issue any Letter of Credit if:


 


(A)          any
order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such L/C Issuer from issuing such
Letter of Credit, or any Law applicable to such L/C Issuer or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over such L/C Issuer shall prohibit, or request
that such L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon such L/C Issuer
with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such L/C Issuer is not otherwise compensated hereunder)
not in effect on the date hereof, or shall impose upon such L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the date hereof
and which such L/C Issuer in good faith deems material to it;


 


(B)           subject
to Section 2.03(b)(iii), the expiry date of such requested Letter of Credit
would occur more than 720 days after the date of issuance;


 


(C)           the
issuance of such Letter of Credit would violate one or more policies of such
L/C Issuer generally applicable to account parties; or


 


(D)          such
Letter of Credit is, in the case of a Performance L/C, to be used for a purpose
other than supporting a Performance Obligation or, in the case of any Letter of
Credit, denominated in a currency other than Dollars or an Alternative
Currency.


 


(iv)          No
L/C Issuer shall be under any obligation to amend any Letter of Credit if (A)
such L/C Issuer would have no obligation at such time to issue such Letter of


 


25

















 


Credit in its
amended form under the terms hereof, or (B) the beneficiary of such Letter of
Credit does not accept the proposed amendment to such Letter of Credit.


 


(b)           Procedures for
Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of Credit.


 


(i)            Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the relevant L/C Issuer (with a copy to
the Paying Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Responsible Officer (or a designee of a Responsible
Officer reasonably acceptable to such L/C Issuer as to which the Borrower has
furnished the L/C Issuer and the Paying Agent with proper evidence of such
designation) of the Borrower.  Such
Letter of Credit Application must be received by such L/C Issuer and the Paying
Agent not later than 11:00 a.m. at least two Business Days (or such later date
and time as such L/C Issuer may agree in a particular instance in its sole
discretion) prior to the proposed issuance date or date of amendment, as the
case may be.  In the case of a request
for an initial issuance of a Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to such L/C Issuer:
(A) the proposed issuance date of the requested Letter of Credit (which shall
be a Business Day); (B) the amount and currency (which shall be Dollars or an
Alternative Currency) thereof; (C) the expiry date thereof (which shall not be
later than the Letter of Credit Termination Date); (D) the name and address of
the beneficiary thereof; (E) the documents to be presented by such beneficiary
in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; and (G) such
other matters as such L/C Issuer may reasonably require.  In the case of a request for an amendment of
any outstanding Letter of Credit, such Letter of Credit Application shall
specify in form and detail satisfactory to such L/C Issuer (A) the Letter of
Credit to be amended; (B) the proposed date of amendment thereof (which shall
be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as such L/C Issuer may reasonably require.


 


(ii)           Promptly
after receipt of any Letter of Credit Application, the relevant L/C Issuer will
confirm with the Paying Agent (by telephone or in writing) that the Paying
Agent has received a copy of such Letter of Credit Application from the Borrower
and, if not, such L/C Issuer will provide the Paying Agent with a copy
thereof.  Upon (x) receipt by such L/C
Issuer of confirmation from the Paying Agent that the requested issuance or
amendment would not cause the Borrower to exceed the limitations set forth in Section
2.03(a)(i) and (y)determination by such L/C Issuer that the requested
issuance or amendment is otherwise permitted in accordance with the terms
hereof, then, subject to the terms and conditions hereof, such L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
Borrower or enter into the applicable amendment, as the case may be, in each
case in accordance with such L/C Issuer’s usual and customary business
practices.  Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk
participation in such Letter of Credit in an amount equal to the product of
such Lender’s Commitment Percentage times the amount of such Letter of
Credit.


 


26

















 


(iii)          If
the Borrower so requests in any applicable Letter of Credit Application, each
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic renewal provisions (each, an “Auto-Renewal Letter
of Credit”); provided that any such Auto-Renewal Letter of Credit
must permit such L/C Issuer to prevent any such renewal at least once in each
720-day period (commencing with the date of issuance of such Letter of Credit)
by giving prior notice to the beneficiary thereof not later than a day (the “Nonrenewal
Notice Date”) in each such 720-day period to be agreed upon at the time
such Letter of Credit is issued.  Unless
otherwise directed by such L/C Issuer, the Borrower shall not be required to
make a specific request to such L/C Issuer for any such renewal.  Once an Auto-Renewal Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) such L/C Issuer to permit the renewal of such Letter of Credit at any
time to an expiry date not later than 720 days after such renewal or, if
earlier, the Letter of Credit Termination Date; provided, however,
that such L/C Issuer shall not permit any such renewal if (A) such L/C Issuer
has determined that it would have no obligation at such time to issue such
Letter of Credit in its renewed form under the terms hereof (by reason of the
provisions of Section 2.03(a)(ii) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is
five Business Days before the Nonrenewal Notice Date (1) from the Paying Agent
that the Required Lenders have elected not to permit such renewal or (2) from
the Paying Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 4.02 is not then satisfied.


 


(iv)          Promptly
after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof,
the relevant L/C Issuer will also deliver to the Borrower and the Paying Agent
a true and complete copy of such Letter of Credit or amendment.


 


(c)           Drawings and
Reimbursements; Funding of Participations.


 


(i)            Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the relevant L/C Issuer shall notify the Borrower
and the Paying Agent thereof.  In the
case of a Letter of Credit denominated in an Alternative Currency, the Borrower
shall reimburse such L/C Issuer in such Alternative Currency, unless (A) such
L/C Issuer (at its option) shall have specified in such notice that it will
require reimbursement in Dollars, or (B) in the absence of any such requirement
for reimbursement in Dollars, the Borrower shall have notified such L/C Issuer
promptly following receipt of the notice of drawing that the Borrower will
reimburse such L/C Issuer in Dollars. 
In the case of any such reimbursement in Dollars of a drawing under a
Letter of Credit denominated in an Alternative Currency, such L/C Issuer shall
notify the Borrower of the Dollar Equivalent of the amount of the drawing
promptly following determination thereof. 
Not later than 11:00 a.m. on the date of any payment by an L/C Issuer
under a Letter of Credit to be reimbursed by Dollars (if the Borrower receives
notice thereof by 9:30 a.m. on such date, and otherwise on the next Business
Day) or the Applicable Time on the date of any payment by such L/C Issuer under
a Letter of Credit to be reimbursed in an Alternative Currency (each such date,
an “Honor Date”), the Borrower shall reimburse such L/C Issuer directly
in an amount equal


 


27

















 


to the amount
of such drawing and in the applicable currency.  If the Borrower fails to so reimburse such L/C Issuer by such
time, such L/C Issuer shall promptly notify the Paying Agent and the Paying
Agent shall promptly notify each Lender of the Honor Date, the amount of the
unreimbursed drawing expressed in Dollars in an amount equal to the Dollar
Equivalent thereof in the case of a Letter of Credit denominated in an
Alternative Currency (the “Unreimbursed Amount”), and the amount of such
Lender’s pro  rata share thereof. 
In such event, the Borrower shall be deemed to have requested a
Borrowing in Dollars of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and
multiples specified in Section 2.02 for the principal amount of Base
Rate Loans, but subject to the amount of the unutilized portion of the
Aggregate Commitments and the conditions set forth in Section 4.02
(other than the delivery of a Loan Notice). 
Any notice given by an L/C Issuer or the Paying Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided
that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.


 


(ii)           Each
Lender (including the Lender acting as an L/C Issuer) shall upon any notice
pursuant to Section 2.03(c)(i) make funds available to the Paying Agent
for the account of the relevant L/C Issuer, in Dollars, at the Paying Agent’s
Office for Dollar-denominated payments in an amount equal to its Commitment
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Paying Agent, whereupon, subject to the
provisions of Section 2.03(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount.  The Paying Agent shall remit
the funds so received to the relevant L/C Issuer in Dollars, or if requested by
the L/C Issuer, the equivalent amount thereof in an Alternative Currency as
determined by the Paying Agent at such time on the basis of the Spot Rate
(determined as of such funding date) for the purchase of such Alternative
Currency with Dollars.


 


(iii)          With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Base Rate Loans because the conditions set forth in Section 4.02
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the relevant L/C Issuer an L/C Borrowing in the amount of
the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be
due and payable on demand (together with interest) and shall bear interest at
the Default Rate.  In such event, each
Lender’s payment to the Paying Agent for the account of such L/C Issuer pursuant
to Section 2.03(c)(ii) shall be deemed payment in respect of its
participation in such L/C Borrowing and shall constitute an L/C Advance from
such Lender in satisfaction of its participation obligation under this Section
2.03.


 


(iv)          Until
each Lender funds its Loan or L/C Advance pursuant to this Section 2.03(c)
to reimburse the relevant L/C Issuer for any amount drawn under any Letter of
Credit, interest in respect of such Lender’s Commitment Percentage of such
amount shall be solely for the account of such L/C Issuer.


 


(v)           Each
Lender’s obligation to make Loans or L/C Advances to reimburse an L/C Issuer
for amounts drawn under Letters of Credit, as contemplated by this Section


 


28

















 


2.03(c), shall be absolute and unconditional
and shall not be affected by any circumstance, including (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against an L/C Issuer, the Borrower or any other Person for any reason
whatsoever, (B) the occurrence or continuance of a Default or termination of
the Commitments, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 4.02 (other than delivery
by the Borrower of a Loan Notice).  No
such making of an L/C Advance shall relieve or otherwise impair the obligation
of the Borrower to reimburse each L/C Issuer for the amount of any payment made
by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.


 


(vi)          If
any Lender fails to make available to the Paying Agent for the account of an
L/C Issuer any amount required to be paid by such Lender pursuant to the
foregoing provisions of this Section 2.03(c) by the time specified in Section
2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender
(acting through the Paying Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to such L/C Issuer at a rate per annum equal
to the Federal Funds Rate from time to time in effect.  A certificate of such L/C Issuer submitted
to any Lender (through the Paying Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.


 


(d)           Repayment of
Participations.  


 


(i)            At
any time after an L/C Issuer has made a payment under any Letter of Credit and
has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Paying Agent receives
for the account of such L/C Issuer any payment in respect of the related
Unreimbursed Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of cash collateral applied thereto by the Paying
Agent), the Paying Agent will distribute to such Lender its pro  rata
share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender’s L/C Advance was
outstanding) in Dollars and in the same funds as those received by the Paying
Agent.


 


(ii)           If
any payment received by the Paying Agent for the account of an L/C Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of
the circumstances described in Section 10.06 (including pursuant to any
settlement entered into by such L/C Issuer in its discretion), each Lender
shall pay to the Paying Agent for the account of such L/C Issuer its Commitment
Percentage thereof on demand of the Paying Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Lender, at
a rate per annum equal to the Federal Funds Rate from time to time in effect.


 


(e)           Obligations Absolute.  The obligation of the Borrower to
reimburse each L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be


 


29

















 


absolute, unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, including the following:


 


(i)            any
lack of validity or enforceability of such Letter of Credit, this Agreement, or
any other agreement or instrument relating thereto;


 


(ii)           the
existence of any claim, counterclaim, set-off, defense or other right that the
Borrower may have at any time against any beneficiary or any transferee of such
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), such L/C Issuer or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by such
Letter of Credit or any agreement or instrument relating thereto, or any
unrelated transaction;


 


(iii)          any
sight draft, demand, certificate or other document presented under such 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, or
any loss or delay in the transmission or otherwise of any document required in
order to make a drawing under such Letter of Credit;


 


(iv)          any
payment by such L/C Issuer under such Letter of Credit against presentation of
a sight draft or certificate that does not strictly comply with the terms of
such Letter of Credit or any payment made by such L/C Issuer under such Letter
of Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; 


 


(v)           any
adverse change in the relevant exchange rates or in the availability of the
relevant Alternative Currency to the Borrower or any Subsidiary or in the
relevant currency markets generally; or


 


(vi)          any
other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including any other circumstance that might otherwise constitute
a defense available to, or a discharge of, the Borrower.


 


The Borrower
shall promptly examine a copy of each Letter of Credit and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance
with the Borrower’s instructions or other irregularity, the Borrower will
immediately notify the relevant L/C Issuer. 
The Borrower shall be conclusively deemed to have waived any such claim
against each L/C Issuer and its correspondents unless such notice is given as
aforesaid.


 


(f)            Role of L/C Issuer.  Each Lender and the Borrower
agree that, in paying any drawing under a Letter of Credit, the relevant L/C
Issuer shall not have any responsibility to obtain any document (other than any
sight draft, certificates and documents expressly required by the Letter of
Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document.  None of the L/C Issuers, any Agent-Related
Person nor any of the respective correspondents, participants or assignees of
L/C Issuers shall be liable to any Lender for (i) any action taken or omitted
in


 


30

















 


connection herewith at the
request or with the approval of the Lenders or the Required Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence
or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application.  The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuers, any Agent-Related
Person, nor any of the respective correspondents, participants or assignees of
the L/C Issuers, shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by such L/C Issuer’s willful misconduct
or gross negligence or the L/C Issuer’s willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit or payment by such L/C Issuer under a Letter of Credit where the
beneficiary has failed to present a sight draft and certificate(s) strictly
complying with the terms and conditions of a Letter of Credit.   In furtherance and not in limitation of the
foregoing, the L/C Issuers 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, and the L/C Issuers shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may
prove to be invalid or ineffective for any reason.


 


(g)           Cash Collateral.  Upon the request of the Paying Agent (which
request the Paying Agent shall make in the case of clause (ii) below), (i) if
an L/C Issuer has honored any full or partial drawing request under any Letter
of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of
the Letter of Credit Termination Date, any Letter of Credit may for any reason
remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Termination Date, as the
case may be).  In addition, if the Paying Agent notifies the Borrower at
any time that the Outstanding Amount of all L/C Obligations at such time
exceeds an amount equal to 105% of the Letter of Credit Sublimit then in
effect, then, within two Business Days after receipt of such notice, the
Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount
sufficient to reduce such Outstanding Amount as of such date of payment  to
an amount not to exceed 100% of the Letter of Credit Sublimit then in
effect.  The Paying Agent may, at
any time and from time to time after the initial deposit of Cash Collateral,
request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations. 
For purposes hereof, “Cash Collateralize” means to pledge and
deposit with or deliver to the Paying Agent, for the benefit of the relevant
L/C Issuer and the Lenders, as collateral for the L/C Obligations, cash or
deposit account balances pursuant to documentation in form and substance
satisfactory to the Paying Agent and such L/C Issuer (which documents are
hereby consented to by the Lenders). 
Derivatives of such term have corresponding meanings.  The Borrower hereby grants to the Paying
Agent, for the benefit of the


 


31

















 


relevant L/C Issuer and the
Lenders, a security interest in all such cash, deposit accounts and all
balances therein and all proceeds of the foregoing.  Cash collateral shall be maintained in blocked, non-interest
bearing deposit accounts at Bank of America so long as the event giving rise to
the requirement to Cash Collateralize hereunder continues, and thereafter, if
no Event of Default has occurred and is continuing, shall be released to the
Borrower as promptly as practicable.


 


(h)           Applicability of
ISP98 and UCP.  Unless otherwise expressly agreed by
an L/C Issuer and the Borrower when a Letter of Credit is issued, (i) either
the “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) or, at the option of the Borrower, the
Uniform Customs and Practice for Documentary Credits (“UCP”), as most
recently published by the International Chamber of Commerce (the “ICC”)
at the time of issuance (including the ICC decision published by the Commission
on Banking Technique and Practice on April 6, 1998 regarding the European
single currency (euro)) shall apply to each standby Letter of Credit, and
(ii) the UCP shall apply to each commercial Letter of Credit.


 


(i)            Letter of Credit
Fees.  The Borrower shall pay to the
Paying Agent for the account of each Lender in accordance with its Commitment
Percentage, in Dollars (i) a Letter of Credit fee for each commercial
Letter of Credit equal to the Applicable L/C Margin for Performance L/Cs times
the Dollar Equivalent of the maximum amount available to be drawn under such
Letter of Credit, (ii) a Letter of Credit fee for each Financial L/C equal
to the Applicable L/C Margin for Financial L/Cs times the Dollar
Equivalent of the daily maximum amount available to be drawn under such Letter
of Credit (after giving effect to any permanent reductions of said maximum
amount), and (iii) a Letter of Credit fee for each Performance L/C equal
to the Applicable L/C Margin for Performance L/Cs times the Dollar
Equivalent of the daily maximum amount available to be drawn under such Letter
of Credit.  Such letter of credit fees
shall be computed on a quarterly basis in arrears.  Such letter of credit fees shall be due and payable on the last
Business Day of each March, June,
September and December, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit
Termination Date (or such later date upon which the outstanding Letter of
Credit shall expire) and thereafter on demand. 
If there is any change in the Applicable L/C Margin during any quarter,
the daily maximum amount of each Letter of Credit shall be computed and multiplied
by the Applicable L/C Margin separately for each period during such quarter
that such Applicable L/C Margin was in effect.


 


(j)            Fronting Fee and
Documentary and Processing Charges Payable to L/C Issuer.  The Borrower shall pay directly
to each L/C Issuer for its own account, in Dollars or such Alternative Currency
as shall be separately agreed, a fronting fee with respect to each Letter of
Credit in the amounts and at the times agreed to by the Borrower and such L/C
Issuer.  In addition, the Borrower shall
pay directly to each L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and
charges, of such L/C Issuer relating to letters of credit as from time to time
in effect.  Such customary fees and
standard costs and charges are due and payable as agreed to between the
Borrower and the relevant L/C Issuer and are nonrefundable.


 


32

















 


(k)           Conflict with Letter
of Credit Application.  In the event
of any conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.


 


(l)            L/C Reports.  Each L/C Issuer shall, on the first Business
Day of each week, furnish to the Paying Agent and the Borrower a written report
setting forth a summary of the issuance date and expiration date of each Letter
of Credit issued by such L/C Issuer during the previous week, whether each such
Letter of Credit is a commercial letter of credit or a Performance L/C or a
Financial L/C, the Outstanding Amount of the L/C Obligations for such Letters
of Credit and drawings under such Letters of Credit during such week, which
report shall be in a form satisfactory to the Paying Agent.  Upon request by any Lender, the Paying Agent
shall furnish a copy of such report to such Lender.  Each L/C Issuer shall also notify the Paying Agent in writing of
any increases or decreases in the Outstanding Amount of the L/C Obligations for
Letters of Credit issued by such L/C Issuer within one Business Day of any such
increase or decrease.


 


2.04        Prepayments.


 


(a)           (i)
The Borrower may, upon notice to the Paying Agent, at any time or from time to
time voluntarily prepay the Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the Paying
Agent not later than 11:00 a.m. (1) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base
Rate Loans; and (B) any prepayment of Loans of either Type shall be in a
principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
thereof or, if less, the then aggregate outstanding principal amount of the
Loans of such Type.


 


(ii)  Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be
prepaid.  The Paying Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of
such Lender’s pro  rata share of such prepayment.  If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein.


 


(iii)  Any prepayment of a
Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Commitment
Percentages.


 


(b)           If for any reason the
Total Outstandings at any time exceed the Aggregate Commitments then in effect,
the Borrower shall immediately prepay Loans and, if no Loans are outstanding,
Cash Collateralize the L/C Obligations in an aggregate amount equal to such
excess; provided, however, that the Borrower shall not be required
to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b)
unless after the prepayment in full of the Loans, the Total Outstandings exceed
the Aggregate Commitments then in effect.


 


33

















 


2.05        Termination or Reduction of Commitments.  


 


(a)  The Borrower may, upon notice to the Paying
Agent, terminate the Commitments, or from time to time permanently reduce the
Aggregate Commitments; provided that (i) any such notice shall be received by
the Paying Agent not later than 11:00 a.m. three Business Days prior to the
date of termination or reduction, (ii) any such partial reduction shall be in
an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in
excess thereof or, if less, the then Aggregate Commitments, (iii) the Borrower
shall not terminate or reduce the Aggregate Commitments if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Outstandings
would exceed the Aggregate Commitments, and (iv) if, after giving effect to any
reduction of the Aggregate Commitments, the Letter of Credit Sublimit exceeds
the amount of the Aggregate Commitments, the Letter of Credit Sublimit shall be
automatically reduced by the amount of such excess.


 


(b)  The Paying Agent will promptly notify the
Lenders of any such notice of termination or reduction of the Aggregate
Commitments.


 


(c)  Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Commitment
Percentage.


 


(d)  All facility
fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.


 


2.06        Repayment of Loans.  
The Borrower agrees to repay in full to the Paying Agent for the account
of the Lenders, on the Termination Date, the aggregate principal amount of
Loans outstanding on such date.


 


2.07        Interest.


 


(a)           Subject to the
provisions of subsection (b) below, (i) each Eurodollar Rate Loan shall bear
interest on the outstanding principal amount thereof for each Interest Period
relating thereto at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Margin, and (ii) each Base Rate Loan
shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate.


 


(b)           If any amount payable
by the Borrower under any Financing Document is not paid when due (without
regard to any applicable grace periods), whether at stated maturity, by acceleration,
by mandatory prepayment or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.  Furthermore, while any Event of Default
exists, the Borrower shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate per annum at
all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.  Accrued and unpaid
interest on past due amounts (including interest on past due interest) shall be
due and payable upon demand.


 


(c)           Interest on each Loan
shall be due and payable in arrears on each Interest Payment Date applicable
thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after


 


34

















 


judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.


 


2.08        Fees.   In addition to
certain fees described in subsections (i) and (j) of Section 2.03:


 


(a)           Facility Fee.  The
Borrower shall pay to the Paying Agent, for the account of each Lender in
accordance with its Commitment Percentage, a facility fee at a rate per annum
equal to the Applicable Facility Fee Rate times the actual daily amount
of the Aggregate Commitments as reduced from time to time pursuant to Section
2.05 (or, if the Aggregate Commitments have terminated, on the Outstanding
Amount of all Loans and L/C Obligations), regardless of usage.  The facility fee shall accrue at all times
during the Availability Period (and thereafter so long as any Loans or L/C
Obligations remain outstanding), including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and
payable quarterly in arrears on each Quarterly Payment Date, commencing with
the first such date to occur after the Closing Date, and on the Termination
Date (and, if applicable, thereafter on demand).


 


(b)           Other
Fees.  (i)  The Borrower shall pay to
the Arrangers and the Paying Agent for their own respective accounts fees in
the amounts and at the times specified in the Fee Letters.  Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.


 


(ii)           The
Borrower shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified.  Such fees shall be fully earned when paid
and shall not be refundable for any reason whatsoever.


 


2.09        Computation of Interest and Fees.   All computations of interest for Base
Rate Loans when the Base Rate is determined by Bank of America’s “prime rate”
shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed.  All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided
that any Loan that is repaid on the same day on which it is made shall, subject
to Section 2.11(a), bear interest for one day.


 


2.10        Evidence of Debt.  


 


(a)           The Credit Extensions
made by each Lender shall be evidenced by one or more accounts or records
maintained by such Lender and by the Paying Agent in the ordinary course of
business.  The accounts or records
maintained by the Paying Agent and each Lender shall be conclusive absent
manifest error of the amount of the Credit Extensions made by the Lenders to
the Borrower and the interest and payments thereon.  Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the Borrower hereunder to
pay any amount owing with respect to the Obligations.  In the event of any conflict between the accounts and records
maintained by any Lender and the accounts and records of the Paying


 


35

















 


Agent in respect of such
matters, the accounts and records of the Paying Agent shall control in the
absence of manifest error.  Upon the
request of any Lender made through the Paying Agent, the Borrower shall execute
and deliver to such Lender (through the Paying Agent) a Note, which shall
evidence such Lender’s Loans in addition to such accounts or records.  Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.


 


(b)           In addition to the
accounts and records referred to in subsection (a), each Lender and the Paying
Agent shall maintain in accordance with its usual practice accounts or records
evidencing the purchases and sales by such Lender of participations in Letters
of Credit.  In the event of any conflict
between the accounts and records maintained by the Paying Agent and the
accounts and records of any Lender in respect of such matters, the accounts and
records of the Paying Agent shall control in the absence of manifest error.


 


2.11        Payments Generally.


 


(a)           All payments to be made
by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. 
Except as otherwise expressly provided herein, all payments by the
Borrower hereunder shall be made to the Paying Agent, for the account of the
respective Lenders to which such payment is owed, at the Paying Agent’s Office
in Dollars and in immediately available funds not later than 2:00 p.m. on the
date specified herein.  The Paying Agent
will promptly distribute to each Lender its Commitment Percentage (or other
applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office.  All payments received by the Paying Agent after 2:00 p.m. shall
be deemed received on the next succeeding Business Day and any applicable
interest or fee shall continue to accrue; provided that payment shall be
deemed received by 2:00 p.m. if the Borrower provides the Paying Agent with
written confirmation of a Federal Reserve Bank reference number no later than
4:00 p.m. on such Business Day.


 


(b)           If any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.


 


(c)           Unless the Borrower or
any Lender has notified the Paying Agent, prior to the date any payment is
required to be made by it to the Paying Agent hereunder, that the Borrower or
such Lender, as the case may be, will not make such payment, the Paying Agent
may assume that the Borrower or such Lender, as the case may be, has timely
made such payment and may (but shall not be so required to), in reliance
thereon, make available a corresponding amount to the Person entitled thereto.  If and to the extent that such payment was
not in fact made to the Paying Agent in immediately available funds, then:


 


(i)            if
the Borrower failed to make such payment, each Lender shall forthwith on demand
repay to the Paying Agent the portion of such assumed payment that was made
available to such Lender in immediately available funds, together with interest
thereon in respect of each day from and including the date such amount was made
available by the Paying Agent to such Lender to the date such amount is repaid
to the


 


36

















 


Paying Agent
in immediately available funds at the Federal Funds Rate from time to time in
effect; and


 


(ii)           if
any Lender failed to make such payment, such Lender shall forthwith on demand
pay to the Paying Agent the amount thereof in immediately available funds,
together with interest thereon for the period from the date such amount was
made available by the Paying Agent to the Borrower to the date such amount is
recovered by the Paying Agent (the “Compensation Period”) at a rate per
annum equal to the Federal Funds Rate from time to time in effect. If such
Lender pays such amount to the Paying Agent, then such amount shall constitute
such Lender’s Loan included in the applicable Borrowing.  If such Lender does not pay such amount
forthwith upon the Paying Agent’s demand therefor, the Paying Agent may make a
demand therefor upon the Borrower, and the Borrower shall pay such amount to
the Paying Agent, together with interest thereon for the Compensation Period at
a rate per annum equal to the rate of interest applicable to the applicable
Borrowing.  Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its Commitment or
to prejudice any rights which the Paying Agent or the Borrower may have against
any Lender as a result of any default by such Lender hereunder.


 


A notice of
the Paying Agent to any Lender or the Borrower with respect to any amount owing
under this subsection (c) shall be conclusive, absent manifest error.


 


(d)           If any Lender makes
available to the Paying Agent funds for any Loan to be made by such Lender as
provided in the foregoing provisions of this Article II, and such funds
are not made available to the Borrower by the Paying Agent because the
conditions to the applicable Credit Extension set forth in Article IV
are not satisfied or waived in accordance with the terms hereof, the Paying
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest.


 


(e)           The obligations of the
Lenders hereunder to make Loans and to fund participations in Letters of Credit
are several and not joint.  The failure
of any Lender to make any Loan or to fund any such participation on any date
required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the
failure of any other Lender to so make its Loan or purchase its participation.


 


(f)            Nothing herein shall
be deemed to obligate any Lender to obtain the funds for any Loan in any
particular place or manner or to constitute a representation by any Lender that
it has obtained or will obtain the funds for any Loan in any particular place
or manner.


 


2.12        Sharing of Payments.  
If, other than as expressly provided elsewhere herein, any Lender
shall obtain on account of the Loans made by it, or the participations in L/C
Obligations held by it, any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its ratable
share (or other share contemplated hereunder) thereof, such Lender shall
immediately (a) notify the Paying Agent of such fact, and (b) purchase from the
other Lenders such participations in the Loans made by them and/or such
subparticipations in the participations in L/C Obligations held by them, as the
case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such Loans or such


 


37

















 


participations, as the case may
be, pro  rata with each of them; provided, however,
that if all or any portion of such excess payment is thereafter recovered from
the purchasing Lender under any of the circumstances described in Section
10.06 (including pursuant to any settlement entered into by the purchasing
Lender in its discretion), such purchase shall to that extent be rescinded and
each other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender’s ratable share
(according to the proportion of (i) the amount of such paying Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered, without further interest thereon.  The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 10.09) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. 
The Paying Agent will keep records (which shall be conclusive and binding
in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases
or repayments.  Each Lender that
purchases a participation pursuant to this Section shall from and after such
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased.


 


ARTICLE
III.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01        Taxes.  


 


(a)           Any and all payments by
each Principal Obligor to or for the account of the Paying Agent or any Lender
under any Financing Document shall be made free and clear of and without
deduction for any and all present or future taxes, duties, levies, imposts,
deductions, assessments, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of the Paying
Agent and each Lender, taxes imposed on or measured by its overall net income,
and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which the
Paying Agent or such Lender, as the case may be, is organized or maintains an
Applicable Lending Office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as “Taxes”).  If either Principal Obligor shall be
required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Financing Document to the Paying Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), each of the Paying Agent and such Lender receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
such Principal Obligor shall make such deductions, (iii) such Principal Obligor
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) within 30 days after the
date of such payment, such Principal Obligor shall furnish to the Paying Agent
(which shall forward the same to such Lender) the original or a certified copy
of a receipt evidencing payment thereof.


 


38

















 


(b)           In addition, each
Principal Obligor agrees to pay any and all present or future stamp, court or
documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under any Financing Document or from
the execution, delivery, performance, enforcement or registration of, or
otherwise with respect to, any Financing Document (hereinafter referred to as “Other
Taxes”).


 


(c)           Each Principal Obligor
agrees to indemnify the Paying Agent and each Lender for (i) the full amount of
Taxes and Other Taxes (including any Taxes or Other Taxes imposed or asserted
by any jurisdiction on amounts payable under this Section) paid by the Paying
Agent and such Lender with respect to any sum payable under any Financing
Document and (ii) any liability (including additions to tax, penalties,
interest and expenses) arising therefrom or with respect thereto, in each case
whether or not such Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  Payment under this subsection (d) shall be made within 30 days
after the date the Lender or the Paying Agent makes a demand therefor.


 


(d)           If either Principal
Obligor is required to pay additional amounts to or for the account of any
Lender pursuant to this Section 3.01, then such Lender will change the
jurisdiction of its Applicable Lending Office so as to eliminate or reduce any
such additional payment which may thereafter accrue if such change, in the
judgment of such Lender in the good faith exercise of its discretion, is not otherwise
materially disadvantageous to such Lender.


 


(e)           The Paying Agent and
each Lender shall use reasonable efforts to promptly furnish to a Principal
Obligor properly completed and executed copies of such forms as such Principal
Obligor may reasonably request in connection with Taxes imposed with respect to
sums payable under any Financing Document to the Paying Agent or Lender (as the
case may be), provided that nothing in this Section 3.01(e) shall
require the Paying Agent or any Lender to disclose any confidential or
proprietary information.


 


3.02        Illegality.   If,
after the date of this Agreement, any Lender determines in its reasonable
judgment that the adoption of, or any change in or in the interpretation or
administration of, any applicable Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, then, on
notice thereof by such Lender to the Borrower through the Paying Agent, any
obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such
Lender notifies the Paying Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. 
Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Paying Agent), prepay or, if applicable, convert all
Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day
of the then current Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate
Loans.  Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted.  Each Lender
agrees to designate a different ApplicableLending Office if such designation
will avoid the need for such notice and will not, in the good faith judgment of
such Lender, otherwise be materially disadvantageous to such Lender.


 


39

















 


3.03        Inability to Determine Rates.   If the Required Lenders determine that
for any reason adequate and reasonable means do not exist for determining the
Eurodollar Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Loan, or that the Eurodollar Rate for any requested Interest
Period with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to such Lenders of funding such Loan, the Paying Agent
will promptly so notify the Borrower and each Lender.  Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until the Paying Agent (upon the instruction of the Required
Lenders) revokes such notice.  Upon
receipt of such notice, the Borrower may revoke any pending request for a
Borrowing of, conversion to or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for
a Borrowing of Base Rate Loans in the amount specified therein.


 


3.04        Increased Cost and Reduced Return;
Capital Adequacy; Reserves on Eurodollar Rate Loans.  


 


(a)           If, after the date of
this Agreement, any Lender determines in its reasonable judgment that the
adoption of, or any change in or in the interpretation or administration of,
any applicable Law, or such Lender’s compliance therewith, has resulted in an
increase in the cost to such Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Loans or (as the case may be) issuing or participating
in Letters of Credit, or a reduction in the amount received or receivable by
such Lender in connection with any of the foregoing (excluding for purposes of
this subsection (a) any such increased costs or reduction in amount resulting
from (i) Taxes or Other Taxes (as to which Section 3.01 shall
govern), (ii) changes in the basis of taxation of overall net income or overall
gross income by the United States or any foreign jurisdiction or any political
subdivision of either thereof under the Laws of which such Lender is organized
or has its Applicable Lending Office, and (iii) reserve requirements contemplated by Section 3.04(c)), then
from time to time within 30 days of demand of such Lender (with a copy of such
demand to the Paying Agent), the Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such increased cost or
reduction.


 


(b)           If any Lender
determines that the introduction of any Law regarding capital adequacy or any
change therein or in the interpretation thereof, or compliance by such Lender
(or its Applicable Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender’s obligations hereunder (taking
into consideration its policies with respect to capital adequacy and such
Lender’s desired return on capital), then from time to time within 30 days of
demand of such Lender (with a copy of such demand to the Paying Agent), the
Borrower shall pay to such Lender such additional amounts as will compensate
such Lender for such reduction.


 


(c)           The Borrower shall pay
to each Lender, as long as such Lender shall be required to maintain reserves
with respect to liabilities or assets consisting of or including Eurocurrency
funds or deposits (currently known as “Eurocurrency liabilities”), additional
interest on the unpaid principal amount of each Eurodollar Rate Loan equal to
the actual costs of such reserves allocated to such Loan by such Lender (as
determined by such Lender in good faith, which determination shall be
conclusive), which shall be due and payable on each date on which interest is
payable on such Loan, provided the Borrower shall have received at least
15 days’


 


40

















 


prior notice (with a copy to
the Paying Agent) of such additional interest from such Lender.  If a Lender fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be
due and payable 15 days from receipt of such notice.


 


(d)           Each Lender will
promptly notify the Borrower and the Paying Agent of any event of which it has
knowledge, occurring after the date of this Agreement, which will entitle such
Lender to compensation pursuant to this Section 3.04; provided that (i) if any Lender fails to give such notice within 90 days
after it obtains actual knowledge of such an event (or, in the exercise of
ordinary due diligence, should have obtained actual knowledge thereof), such
Lender shall only be entitled to payment under this Section 3.04 for
costs incurred from and after the date 90 days prior to the date that such
Lender does give such notice and (ii) each such Lender will designate a
different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment
of such Lender in the good faith exercise of its discretion, be otherwise
disadvantageous to such Lender.


 


3.05        Funding Losses.  
Upon demand of any Lender (with a copy to the Paying Agent) from
time to time, the Borrower shall promptly compensate such Lender for and hold
such Lender harmless from any loss, cost or expense incurred by it as a result
of:


 


(a)           any continuation,
conversion, payment or prepayment of any Eurodollar Rate Loan on a day other
than the last day of an Interest Period for such Loan (whether voluntary,
mandatory, automatic, by reason of acceleration, or otherwise); or


 


(b)           any failure by the
Borrower (for a reason other than the failure of such Lender to comply with its
obligation to make a Loan) to prepay, borrow, continue or convert any
Eurodollar Rate Loan on the date or in the amount notified by the Borrower;


 


including any loss of
anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable
to terminate the deposits from which such funds were obtained.  The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
at the Eurodollar Rate for such Loan by a matching deposit or other borrowing
in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so
funded.


 


3.06        Matters Applicable to all Requests for
Compensation.   Any Lender or Agent
claiming compensation under this Article III shall deliver to the Paying
Agent, who shall deliver to the Borrower contemporaneously with the demand for
payment a certificate setting forth in reasonable detail the calculation of any
additional amount or amounts to be paid to it hereunder and the basis used to
determine such amounts and such certificate shall be conclusive in the absence
of manifest error.  In determining such
amount, the Paying Agent or such Lender will use any reasonable averaging and
attribution methods.


 


3.07        Survival.   All of
the Borrower’s obligations under this Article III shall survive
termination of the Aggregate Commitments and repayment of all other Obligations
hereunder.


 


41

















 


3.08        Substitution of Lender.   If any Lender (i) has demanded compensation for
increased costs pursuant to Section 3.01 or 3.04 or is
entitled to payments under Section 3.04(a) or (ii) has
determined that the making or maintaining of any Eurodollar Rate Loan has
become unlawful or impossible pursuant to Section 3.02 and similar
additional interest or compensation has not been demanded by, or a similar
determination has not been made by, all of the Lenders, the Borrower shall have
the right to designate an assignee which is not an Affiliate of the Borrower to
purchase for cash, pursuant to an Assignment and Assumption, the outstanding
Loans and Commitment of such Lender and to assume all of such Lender’s other
rights and obligations hereunder without recourse to or representation or
warranty by, or expense to, such Lender (other than as set forth in the
Assignment and Assumption), for a purchase price equal to (A) the
outstanding principal amount of such Lender’s Loan plus (B) any accrued
but unpaid interest thereon plus (C) the accrued but unpaid fees in
respect of such Lender’s Commitment plus (D) such amount, if any, as would
be payable pursuant to Section 3.05 if the Loan of such Lender were
prepaid in full on the date of consummation of such assignment plus
(E) any other amounts due and payable to such Lender hereunder.


 


ARTICLE
IV.

CONDITIONS PRECEDENT TO EFFECTIVENESS AND CREDIT EXTENSIONS


 


4.01        Conditions to Effectiveness.   This Agreement shall become effective on the date that each
of the following conditions shall have been satisfied (or waived in accordance
with Section 10.01):


 


(a)           The
Paying Agent’s receipt of the following, each of which shall be originals,
electronic copies or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Obligor, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Paying Agent and its legal counsel:


 


(i)            executed
counterparts of this Agreement, sufficient in number for distribution to the
Paying Agent, each Lender and the Borrower;


 


(ii)           a
Note executed by the Borrower in favor of each Lender requesting a Note;


 


(iii)          certified
copies of the charter, by-laws and other constitutive documents of each
Principal Obligor and of resolutions of the Board of Directors of each
Principal Obligor authorizing the making and performance by it of the Financing
Documents to which it is a party, together with incumbency certificates
evidencing the identity, authority and capacity of each Person authorized to
execute and deliver the Financing Documents thereunder;


 


(iv)          a
favorable opinion of each of (i) the general counsel of the Parent,
substantially in the form of Exhibit D-1, (ii) Allen & Overy,
special Luxembourg counsel of the Borrower, substantially in the form of Exhibit
D-2, (iii) Appleby, Spurling & Kempe, special Bermudian counsel of
the Parent, substantially in the


 


42

















 


form of Exhibit D-3,
(iv) Foley & Lardner, special New York counsel of the Obligors,
substantially in the form of Exhibit D-4, and (v) special New York
counsel to the Paying Agent, substantially in the form of Exhibit D-5;


 


(v)           a
certificate signed by a Responsible Officer or Designated Officer certifying
(A) that the conditions specified in Sections 4.02(a) and (b)
have been satisfied, and (B) that there has been no event or circumstance since
the date of the financial statements referred to in Section 5.04(a)
that has had or could be reasonably expected to have, either individually or in
the aggregate, a Material Adverse Effect;


 


(vi)          evidence that the commitments under Existing Credit Agreements have been
or concurrently with the Closing Date are being terminated and that all amounts
thereunder have been paid in full or are being paid in full in cash out of the
proceeds of the initial Borrowing;


 


(vii)         evidence of the consent
of CT Corporation System in New York, New York to the appointment and
designation provided for by Section 10.15(c) hereof; and 


 


(viii)        such other assurances, certificates, documents,
consents or opinions as the Paying Agent, the L/C Issuers or the Required
Lenders reasonably may require.


 


(b)           Any
fees required to be paid on or before the Closing Date shall have been paid.


 


(c)           Unless
waived by the Co-Administrative Agents and the Arrangers, the Borrower shall
have paid all reasonable Attorney Costs of the Co-Administrative Agents and the
Arrangers to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of reasonable Attorney Costs as shall constitute its
reasonable estimate of reasonable Attorney Costs incurred or to be incurred by
it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the
Paying Agent).


 


(d)           The
Closing Date shall have occurred on or before December 31, 2003.


 


The Paying
Agent shall promptly notify the Borrower and the Lenders of the Closing Date,
and such notice shall be conclusive and binding.


 


4.02        Conditions to all Credit Extensions.   The obligation of each Lender to honor
any Request for Credit Extension (other than a Loan Notice requesting only a
conversion of Loans to the other Type, or a continuation of Eurodollar Rate
Loans) is subject to the following conditions precedent:


 


(a)           The
representations and warranties of the Borrower and each other Obligor contained
in Article V (other than, after the Closing Date, the representation and
warranty set forth in Section 5.04(b) or 5.05(a)) or any other
Financing Document, or


 


43

















 


which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct in all material respects on and as of
the date of such Credit Extension, except to the extent that any such
representation or warranty specifically refers to an earlier date, in which
case it shall be true and correct as of such earlier date;


 


(b)           No
Default shall exist, or would result from such proposed Credit Extension.


 


(c)           The
Paying Agent and, if applicable, an L/C Issuer shall have received a Request
for Credit Extension in accordance with the requirements hereof.


 


Each Request
for Credit Extension (other than a Loan Notice requesting only a conversion of
Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted
by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 4.02(a) and (b) have been
satisfied on and as of the date of the applicable Credit Extension.


 


ARTICLE
V.

REPRESENTATIONS AND WARRANTIES


 


Each Principal
Obligor represents and warrants to the Paying Agent and the Lenders that:


 


5.01        Corporate Existence and Power.   Each Principal Obligor is a company
duly organized or formed and validly existing under the laws of its
jurisdiction of organization or formation. 
Each Principal Obligor has all corporate powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted, except to the extent that failure to have any such
power or governmental license, authorization, consent or approval could not,
based upon the facts and circumstances in existence at the time this
representation and warranty is made or deemed made, reasonably be expected to
have a Material Adverse Effect.


 


5.02        Corporate and Governmental Authorization; No
Contravention.   The execution, delivery
and performance by each Principal Obligor of this Agreement and by the Borrower
of the Notes: (a) are within its corporate or, if applicable, partnership,
powers; (b) have been duly authorized by all necessary corporate or, if
applicable, partnership, action on its part; (c) require no license, consent,
approval or other action by or in respect of, or filing or registration with,
any governmental body, agency or official, in each case, on its part; and (d)
do not contravene, or constitute a default under, any provision of (i)
applicable law or regulation, (ii) its Organization Documents, or (iii) any
agreement or instrument evidencing or governing Debt of such Principal Obligor
or any other material agreement, judgment, injunction, order, decree or other
instrument binding upon such Principal Obligor.


 


5.03        Binding Effect.  
This Agreement constitutes a legal, valid and binding agreement of
such Principal Obligor and each Note, when executed and delivered in accordance
with this Agreement, will constitute a legal, valid and binding obligation of
the Borrower, in each case enforceable against such Principal Obligor in
accordance with its terms.


 


44

















 


5.04        Financial Information.


 


(a)  The consolidated balance sheet of the Parent
and its Consolidated Subsidiaries as of September 30, 2003 and the related
consolidated statements of income, of shareholders’ equity and of cash flows
for the fiscal year then ended, reported on by PricewaterhouseCoopers LLP and
set forth in the Parent’s 2003 Form 10-K, a copy of which has been delivered to
each of the Lenders, fairly present, in conformity with GAAP, the consolidated
financial position of the Parent and its Consolidated Subsidiaries as of such
date and their consolidated results of operations and cash flows for such
period.


 


(b)           Since September 30,
2003 there has been no Material Adverse Change.


 


5.05        Litigation.   There
is no action, suit, proceeding or investigation pending against, or to the
knowledge of the Parent threatened against or affecting, the Parent or any of
its Subsidiaries before any court or arbitrator or any governmental body,
agency or official (a) except as set forth in the Parent’s filings of Forms
10K, 10Q or 8K on or before the date hereof or as set forth in Schedule 5.05
(the “Existing Litigation”), and except for shareholders’ derivative
litigation or shareholders’ class actions based on the same facts and
circumstances as the Existing Litigation, in which there is a reasonable
possibility of an adverse decision which could, based upon the facts and
circumstances in existence at the time this representation and warranty is made
or deemed made, reasonably be expected to have a Material Adverse Effect or (b)
which in any manner draws into question the validity or enforceability of any
of the Financing Documents.


 


5.06        Compliance with ERISA.  
Each member of the ERISA Group has fulfilled its obligations under
the minimum funding standards of ERISA and the Code with respect to each Plan
and is in compliance, except where the failure to so comply could not, based
upon the facts and circumstances in existence at the time this representation
and warranty is made or deemed made, reasonably be expected to have a Material
Adverse Effect, with the presently applicable provisions of ERISA and the Code
with respect to each Plan.  No member of
the ERISA Group has (i) sought a waiver of the minimum funding standard under
Section 412 of the Code in respect of any Plan, (ii) failed to make any
required contribution or payment to any Plan or Multiemployer Plan, or made any
amendment to any Plan, which has resulted in or could, based upon the facts and
circumstances in existence at the time this representation and warranty is made
or deemed made, reasonably be expected to result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Code or (iii)
incurred any liability under Title IV of ERISA (other than a liability to the
PBGC for premiums under Section 4007 of ERISA), which could, based upon the
facts and circumstances existing at the time this representation and warranty
is made or deemed made, reasonably be expected to have a Material Adverse
Effect.


 


5.07        Environmental Matters.  
In the ordinary course of its business, the Parent conducts an
ongoing review of the effect of Environmental Laws on the business, operations
and properties of the Parent and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any 


 


45

















 


related constraints on
operating activities, including any periodic or permanent shutdown of any
facility or reduction in the level of or change in the nature of operations
conducted thereat, any costs or liabilities in connection with off-site
disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses).  On the basis of this review,
the Parent has reasonably concluded that such associated liabilities and costs,
including the costs of compliance with Environmental Laws, could not, based
upon the facts and circumstances existing at the time this representation and
warranty is made or deemed made, reasonably be expected to have a Material
Adverse Effect.


 


5.08        Insurance.   The
properties of each Principal Obligor and its Subsidiaries are insured with
financially sound and reputable insurance companies in such amounts, with such
deductibles and covering such risks as are customarily carried by companies
engaged in similar businesses and owning similar properties in localities where
such Principal Obligor or Subsidiary operates.


 


5.09        Taxes.   The Parent and its Significant
Subsidiaries have filed all material tax returns which are required to be filed
by them and have paid all taxes shown on such returns or pursuant to any
material assessment received by the Parent or any Significant Subsidiary,
except those assessments which are being contested in good faith by appropriate
proceedings.  The charges, accruals and
reserves on the books of the Parent and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Parent, adequate.


 


5.10        Subsidiaries.   Each
of the Parent’s Consolidated Subsidiaries is duly organized or formed, validly
existing and (to the extent such concept is applicable to it) in good standing
under the laws of its jurisdiction of organization or formation, except (i)
where the failure to be so organized, existing or in good standing could not,
based upon the facts and circumstances existing at the time this representation
and warranty is made or deemed made, reasonably be expected to have a Material
Adverse Effect or (ii) as a result of a transaction permitted by Section
6.10.  Each such Subsidiary has all
legal powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except to the
extent that failure to have any such power or governmental license,
authorization, consent or approval could not, based upon the facts and
circumstances in existence at the time this representation and warranty is made
or deemed made, reasonably be expected to have a Material Adverse Effect.


 


5.11        Not an Investment Company or Public Utility Holding
Company.   Neither Principal Obligor
is an “investment company” within the meaning of the Investment Company Act of
1940, as amended, or a “holding company” or a “subsidiary company” of a
“holding company”, or an “affiliate” thereof, within the meaning of the Public
Utility Holding Company Act of 1935, as amended.


 


5.12        Margin Regulations.   Neither Principal Obligor is engaged principally or as one of its
important activities in the business of buying or carrying margin stock within
the meaning of Regulation U of the FRB, and no part of the proceeds of any
extension of credit hereunder will be used for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any such margin stock.


 


46

















 


5.13        Full Disclosure.  
All information heretofore furnished by or on behalf of the Obligors
to the Paying Agent in connection with this Agreement does not contain any
untrue statement of material fact or omit to state any material fact necessary
to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading on the date when made;
provided that with respect to projections, the Principal Obligors
represent and warrant only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time made, it being
understood that projections are subject to significant uncertainties and contingencies,
many of which are beyond the control of the Principal Obligors and that no
assurance can be given that such projections will be realized.


 


5.14        Ownership of Property; Liens.   Each of the Parent and each Consolidated
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  The property of the
Parent and its Subsidiaries is subject to no Liens, other than Liens permitted
by Section 6.09.


 


5.15        Obligations to Be Pari Passu.   The obligations of each Principal Obligor under this
Agreement rank pari  passu as to priority of payment and in all
other respects with all other unsecured and unsubordinated obligations of such
Principal Obligor.


 


5.16        Tax Shelter Regulations.  
Each Principal Obligor does not intend to treat the Loans and/or
Letters of Credit as being a “reportable transaction” (within the meaning of
Treasury Regulation Section 1.6011-4). 
In the event such Principal Obligor determines to take any action
inconsistent with such intention, it will promptly notify the Paying Agent
thereof.  If a Principal Obligor so
notifies the Paying Agent, such Principal Obligor acknowledges that one or more
of the Lenders may treat its Loans and/or its interest in Letters of Credit as
part of a transaction that is subject to Treasury Regulation Section 301.6112-1,
and such Lender or Lenders, as applicable, will maintain the lists and other
records required by such Treasury Regulation.


 


ARTICLE
VI.

COVENANTS


 


The Parent
agrees that so long as any Lender has any Commitment hereunder, any Letter of
Credit remains outstanding or any amount payable under this Agreement or any
Note remains unpaid:


 


6.01        Information.   The Parent will deliver to the Paying Agent
(which, except as otherwise provided below with respect to subsections (a),
(b), (e) and (f), the Paying Agent shall promptly furnish
to each Lender):


 


(a)           as soon as available
and in any event within 120 days after the end of each fiscal year of the
Parent, a consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income, of shareholders’ equity and of cash flows for such fiscal
year, setting forth, in each case in comparative form, the figures for the
previous fiscal year, such consolidated statements to be reported on by


 


47

















 


PricewaterhouseCoopers LLP or
other independent public accountants of internationally recognized standing in
a manner complying with the applicable rules and regulations promulgated by the
SEC;


 


(b)           as
soon as available and in any event within 60 days after the end of each of the
first three quarters of each fiscal year of the Parent, a consolidated balance
sheet of the Parent and its Consolidated Subsidiaries as of the end of such
quarter, the related consolidated statements of income for such quarter, and
the related consolidated statements of income and cash flows for the portion of
the Parent’s fiscal year ended at the end of such quarter, setting forth in the
case of such statements of income and of cash flows in comparative form the
figures for the corresponding quarter (in the case of consolidated statements
of income) and for the corresponding portion of the Parent’s previous fiscal
year, all certified (subject to the absence of footnotes, audit and normal
year-end adjustments) as to GAAP on behalf of the Parent by the chief financial
officer or the chief accounting officer of the Parent or a Designated Officer;


 


(c)           simultaneously
with the delivery of each set of financial statements referred to in
subsections (a) and (b) above, a certificate on behalf of the Parent signed by
the chief financial officer or the chief accounting officer of the Parent or a
Designated Officer (i) setting forth in reasonable detail the calculations
required to establish whether the Parent was in compliance with the
requirements of Sections 6.08, 6.09, 6.12 and 6.13
on the date of such financial statements and (ii) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth, in reasonable detail, the nature thereof and the action which the Parent
is taking or proposes to take with respect thereto;


 


(d)           within
five Business Days after any Responsible Officer obtains knowledge of any
Default, if such Default is then continuing, a certificate on behalf of the
Parent signed by a Responsible Officer of the Parent or a Designated Officer
setting forth, in reasonable detail, the nature thereof and the action which
the Parent is taking or proposes to take with respect thereto;


 


(e)           promptly
following the mailing thereof to the shareholders of the Parent generally,
copies of all financial statements, reports and proxy statements so mailed;


 


(f)            promptly
upon the filing thereof, copies of all final registration statements (other
than the exhibits thereto and any registration statements on Form S-8 or its
equivalent) and final reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Parent or the Borrower shall have filed with the SEC;


 


(g)           promptly
upon any Responsible Officer obtaining knowledge of the commencement of any
action, suit or proceeding or investigation before any court, arbitrator or
other governmental body against the Parent or any of its Subsidiaries that, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect, a certificate on behalf of the Parent specifying the nature of such
action, suit or proceeding and what action the Parent is taking or proposes to
take with respect thereto;


 


(h)           promptly
following, and in any event within 10 days of, any change in the Moody’s Rating
or the S&P Rating, notice thereof; and


 


48

















 


(i)            from
time to time, upon reasonable notice, such additional information regarding the
financial position or business of the Parent and its Subsidiaries as the Paying
Agent, at the request of any Lender, may reasonably request.


 


Information required to be delivered pursuant to
subsections (a), (b), (e) or (f) above shall be deemed to have been delivered
on the date on which the Parent provides notice to the Paying Agent that such
information has been posted on the Parent’s website on the Internet at the
website address listed in Schedule 10.02, at sec.gov/edaux/searches.htm
or at another website identified in such notice and accessible by the Lenders
without charge; provided  that
(i) such notice may be included in a certificate delivered pursuant to subsection
6.01(c) and (ii) the Parent shall deliver paper copies of the information
referred to in subsections (a), (b), (e) or (f) to
any Lender which requests such delivery.


 


6.02        Payment of Obligations.  
The Parent will pay and discharge, and will cause each Subsidiary to
pay and discharge, at or before maturity, all their respective material
obligations and liabilities, including, without limitation, tax liabilities,
except where (i) any such failure to so pay or discharge could not, based upon
the facts and circumstances in existence at the time, reasonably be expected to
have a Material Adverse Effect or (ii) such liabilities or obligations may be
contested in good faith by appropriate proceedings.  The Parent will maintain, and will cause each Subsidiary to
maintain, in accordance with GAAP, appropriate reserves for the accrual of any
of such liabilities or obligations.


 


6.03        Maintenance of Property; Insurance.  


 


(a)           Except
as permitted by Section 6.04, the Parent will keep, and will cause each
Subsidiary to keep, all property necessary in its business in good working
order and condition, ordinary wear and tear excepted, unless the failure to do
so could not, based upon the facts and circumstances existing at the time,
reasonably be expected to have a Material Adverse Effect.


 


(b)           The Parent will
maintain, and will cause each Subsidiary to maintain, with financially sound
and reputable insurers, insurance with respect to its assets and business
against such casualties and contingencies, of such types (including, without
limitation, loss or damage, product liability, business interruption, larceny,
embezzlement or other criminal misappropriation) and in such amounts as is
customary in the case of similarly situated corporations of established
reputations engaged in the same or a similar business, unless the failure to
maintain such insurance could not, based upon the facts and circumstances
existing at the time, reasonably be expected to have a Material Adverse Effect.


 


6.04        Conduct of Business and Maintenance of Existence.   The Parent will:


 


(a)           not engage in any
material business other than the holding of stock and other investments in its
Subsidiaries and activities reasonably related thereto, 


 


(b)           cause each Significant
Subsidiary to engage in business of the same general type as now conducted by
the Parent’s Significant Subsidiaries and reasonably related extensions
thereof, and 


 


(c)           preserve, renew and
keep in full force and effect, and will cause each Significant Subsidiary to
preserve, renew and keep in full force and effect (i) their respective legal
existence


 


49

















 


and (ii) their respective
rights, privileges and franchises necessary or desirable in the normal conduct
of business, unless in the case of either the failure of the Parent to comply
with subclause (c) (ii) of this Section 6.04 or the failure of a
Significant Subsidiary to comply with clause (b) or (c) of this Section 6.04,
such failure could not, based upon the facts and circumstances existing at the
time, reasonably be expected to have a Material Adverse Effect; 


 


provided  that nothing in this Section 6.04
shall prohibit (A) the merger or consolidation of a Subsidiary (other than the
Borrower) with or into the Parent or a Wholly-Owned Consolidated Subsidiary,
(B) the merger or consolidation of a Significant Subsidiary (other than the
Borrower) with or into a Person other than the Parent or a Wholly-Owned
Consolidated Subsidiary, if the Person surviving such consolidation or merger
is a Subsidiary and immediately after giving effect thereto, no Default shall
have occurred and be continuing, (C) any transaction permitted pursuant to
Section 6.10 or (D) the termination of the legal existence of any Significant
Subsidiary (other than the Borrower or any Subsidiary Guarantor, except in
connection with a transaction permitted under Section 6.10, if a
successor has assumed its obligations hereunder and under the other Financing
Documents as contemplated thereby) if the Parent in good faith determines that
such termination is in the best interest of the Parent and is not materially
disadvantageous to the Lenders.


 


6.05        Compliance with Laws.   The Parent will comply, and will cause each Significant
Subsidiary to comply, in all material respects with all applicable Laws and
requirements of governmental authorities (including, without limitation,
Environmental Laws and ERISA and the rules and regulations thereunder) except
where (a) noncompliance therewith could not, based upon the facts and
circumstances in existence at the time, reasonably be expected to have a
Material Adverse Effect or (b) the necessity of compliance therewith is
contested in good faith by appropriate proceedings.


 


6.06        Inspection of Property, Books and Records.  


 


(a)           The
Parent will keep, and will cause each Consolidated Subsidiary to keep, proper
books of record and account in which true and correct entries shall be made of
its business transactions and activities so that financial statements that
fairly present its business transactions and activities can be properly
prepared in accordance with GAAP.


 


(b)           The Parent will permit,
and will cause each Significant Subsidiary to permit, representatives of any
Lender at such Lender’s expense to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books
and records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all
upon reasonable notice to the Parent, at such reasonable times and as often as
may reasonably be requested by any Lender.


 


6.07        Limitation on Restrictions on Subsidiary
Dividends and Other Distributions.   The
Parent will not, and will not permit any Subsidiary to, directly or indirectly,
create or otherwise cause or suffer to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits, owned by the Parent or any
Subsidiary, or pay any Debt owed by any Subsidiary to the Parent or any
Subsidiary, (b) make loans or advances to


 


50

















 


the Parent or any Subsidiary or
(c) transfer any of its properties or assets to the Parent or any Subsidiary,
except for such encumbrances or restrictions existing under or by reason of:


 


(i)            applicable Law,
agreements with foreign governments with respect to assets located in their
jurisdiction, or condemnation or eminent domain proceedings,


 


(ii)           any of the Financing
Documents,


 


(iii)          (A) customary provisions
restricting subletting or assignment of any lease governing a leasehold
interest of the Parent or a Subsidiary, or (B) customary restrictions imposed
on the transfer of trademarked, copyrighted or patented materials or provisions
in agreements that restrict the assignment of such agreements or any rights
thereunder,


 


(iv)          provisions contained in
the instruments evidencing or governing Debt or other obligations or
agreements, in each case existing on the date hereof,


 


(v)           provisions contained in
documents evidencing or governing any Permitted Securitization Transaction,


 


(vi)          provisions contained in
instruments evidencing or governing Debt or other obligations or agreements of
any Person, in each case, at the time such Person (A) shall be merged or consolidated
with or into the Parent or any Subsidiary, (B) shall sell, transfer, assign,
lease or otherwise dispose of all or substantially all of such Person’s assets
to the Parent or a Subsidiary, or (C) otherwise becomes a Subsidiary, provided  that in the case of clause
(A), (B) or (C), such Debt, obligation or agreement was not incurred or entered
into, or any such provisions adopted, in contemplation of such transaction,


 


(vii)         provisions contained in
Refinancings, so long as such provisions are, in the good faith determination
of the Parent’s board of directors, not materially more restrictive than those
contained in the respective instruments so Refinanced,


 


(viii)        provisions contained in
any instrument evidencing or governing Debt or other obligations of a
Subsidiary Guarantor,


 


(ix)           any encumbrances and
restrictions with respect to a Subsidiary imposed in connection with an
agreement which has been entered into for the sale or disposition of such
Subsidiary or its assets, provided  such
sale or disposition otherwise complies with this Agreement,


 


(x)            the subordination
(pursuant to its terms) in right and priority of payment of any Debt owed by
any Subsidiary (the “Indebted Subsidiary”) to the Parent or any other
Subsidiary, to any other Debt of such Indebted Subsidiary, provided  that (A) such Debt is permitted under this Agreement and (B) the
Parent’s board of directors has determined, in good faith, at the time of the
creation of such encumbrance or restriction, that such encumbrance or
restriction could not, based upon the facts and circumstances in existence at
the time, reasonably be expected to have a Material Adverse Effect,


 


51

















 


(xi)           provisions governing
Preferred Stock issued by a Subsidiary, provided  that such Preferred Stock is permitted
under Section 6.08, and


 


(xii)          provisions contained in
debt instruments, obligations or other agreements of any Subsidiary which are
not otherwise permitted pursuant to clauses (i) through (xi) of this Section
6.07, provided  that
the aggregate investment of the Parent in all such Subsidiaries (determined in
accordance with GAAP) shall at no time exceed the greater of (a) $300,000,000
or (b) 3% of Consolidated Tangible Assets.


 


The provisions of this Section
6.07 shall not prohibit (x) Liens not prohibited by Section 6.09 or
(y) restrictions on the sale or other disposition of any property securing Debt
of any Subsidiary, provided  such
Debt is otherwise permitted by this Agreement.


 


6.08        Total Debt.   The
Parent will not at any time permit the aggregate outstanding principal amount
of Debt of the Consolidated Subsidiaries to exceed an amount equal to 5% of
Consolidated Tangible Assets at such time, provided that for purposes of
this Section 6.08, “Debt” (A) shall not include (i) Permitted
Acquired Debt of any Consolidated Subsidiary, (ii) Debt of any
Consolidated Subsidiary (other than the Borrower) outstanding as of the Closing
Date, and any Refinancings thereof or (iii) Debt of the Borrower and (B)
shall include any Preferred Stock of a Consolidated Subsidiary, valued at the
higher of its voluntary or involuntary liquidation value, held by a Person
other than the Parent or a Wholly-Owned Consolidated Subsidiary.


 


6.09        Restrictions on Liens.  
The Parent will not, and will not permit any Subsidiary to, create,
assume or suffer to exist any Lien on any asset now owned or hereafter acquired
by it, except:


 


(a)           any
Lien existing on any asset on the date hereof securing Debt outstanding on such
date;


 


(b)           any
Lien existing on any asset of, or Stock of any Person at the time such Person
becomes a Subsidiary, which Lien was not created in contemplation of such
event;


 


(c)           any
Lien on any asset securing the payment of all or part of the purchase price of
such asset upon the acquisition thereof by the Parent or a Subsidiary or
securing Debt (including any obligation as lessee incurred under a capital
lease) incurred or assumed by the Parent or a Subsidiary prior to, at the time
of or within one year after such acquisition (or in the case of real property,
the completion of construction (including any improvements on an existing
property) or the commencement of full operation of such asset or property,
whichever is later), which Debt is incurred or assumed for the purpose of
financing all or part of the cost of acquiring such asset or, in the case of
real property, construction or improvements thereon; provided, that in the case of any such
acquisition, construction or improvement, the Lien shall not apply to any asset
theretofore owned by the Parent or a Subsidiary, other than assets so acquired,
constructed or improved;


 


(d)           any
Lien existing on any asset or Stock of any Person at the time such Person is
merged or consolidated with or into the Parent or a Subsidiary which Lien was
not created in contemplation of such event;


 


52

















 


(e)           any
Lien existing on any asset or Stock of any Person at the time of acquisition
thereof by the Parent or a Subsidiary, which Lien was not created in contemplation
of such acquisition;


 


(f)            any
Lien arising out of the Refinancing of any Debt secured by any Lien permitted
by any of the subsections (a) through (e) of this Section 6.09, provided  that the principal amount of Debt is not increased and is not
secured by any additional assets, except as provided in the last sentence of
this Section 6.09;


 


(g)           any
Lien to secure Debt of a Subsidiary to the Parent or to a Wholly-Owned
Consolidated Subsidiary;


 


(h)           any
Lien created pursuant to a Permitted Securitization Transaction;


 


(i)            any
Lien in favor of any country (or any department, agency, instrumentality or
political subdivision of any country) securing obligations arising in
connection with partial, progress, advance or other payments pursuant to any
contract, statute, rule or regulation or securing obligations incurred for the
purpose of financing all or any part of the purchase price (including the cost
of installation thereof or, in the case of real property, the cost of
construction or improvement or installation of personal property thereon) of
the asset subject to such Lien (including, but not limited to, any Lien
incurred in connection with pollution control, industrial revenue or similar
financings);


 


(j)            Liens
arising in the ordinary course of its business which (i) do not secure Debt,
(ii) do not secure any single obligation in an amount exceeding $25,000,000 and
(iii) do not in the aggregate materially detract from the value of its assets
or materially impair the use thereof in the operation of its business; 


 


(k)           Liens
incurred and pledges or deposits in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;


 


(l)            Liens
for taxes, assessments and governmental charges or levies which are not yet due
or are payable without penalty or of which the amount, applicability or
validity is being contested by the Parent or a Subsidiary whose property is
subject thereto in good faith by appropriate proceedings as to which adequate
reserves are being maintained; and


 


(m)          Liens
not otherwise permitted by the foregoing clauses (a) through (j) of this Section
6.09 securing Debt or other obligations (without duplication) in an
aggregate principal amount at any time outstanding not to exceed an amount
equal to 5% of Consolidated Tangible Assets at such time.


 


It is
understood that any Lien permitted to exist on any asset pursuant to the
foregoing provisions of this Section 6.09 may attach to the proceeds of such
asset and, with respect to Liens permitted pursuant to subsections (a), (b),
(d), (e), (f) (but only with respect to the Refinancing of a Debt secured by a
Lien permitted pursuant to subsections (a), (b), (d) or (e)) or (g) of this Section
6.09, may attach to an asset acquired in the ordinary course of business as
a replacement of such former asset.


 


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6.10        Consolidations, Mergers and Sales of Assets.  


 


(a)           No
Principal Obligor will consolidate, amalgamate or merge with or into any other
Person or sell, lease or otherwise transfer all or substantially all of its
assets to any other Person, unless


 


(i)            such Principal Obligor
or one of its Subsidiaries is the surviving corporation, or the Person (if other
than such Principal Obligor) formed by such consolidation or amalgamation or
into which such Principal Obligor is merged or amalgamated, or the Person which
acquires by sale or other transfer, or which leases, all or substantially all
of the assets of such Principal Obligor (any such Person, the “Successor”),
shall be organized and existing under the laws of (A) in the case of a
Successor to the Borrower, Luxembourg or the United States, any state thereof
or the District of Columbia or (B) in the case of a Successor to the Parent,
Bermuda or of the United States, any state thereof or the District of Columbia
and shall expressly assume, in a writing executed and delivered to the Paying
Agent for delivery to each of the Lenders, in form reasonably satisfactory to
the Required Lenders, the due and punctual payment of the principal of and
interest on the Loans and the performance of the other obligations under this
Agreement and the Notes on the part of such Principal Obligor to be performed
or observed, as fully as if such Successor were originally named as such
Principal Obligor in this Agreement; and


 


(ii)           immediately after
giving effect to such transaction, no Default shall have occurred and be
continuing; and


 


(iii)          such Principal Obligor
has delivered to the Paying Agent a certificate on behalf of such Principal
Obligor signed by one of its Responsible Officers and an opinion of counsel,
each stating that all conditions provided in this Section 6.10 relating
to such transaction have been satisfied.


 


(b)           Neither Section
6.10(a) nor any other provision of any of the Financing Documents shall be
deemed to prohibit the reincorporation or domestication into the United States
of the Parent and/or the Borrower, whether under Section 388 of the Delaware
General Corporation Law, through merger or consolidation or transfer of assets
or in such other manner as may be satisfactory to the Required Lenders, provided
that (I) prior to the consummation of such transaction the Paying Agent shall
have received each of the following: 
(x) evidence in form and substance reasonably satisfactory to the
Required Lenders, of its continued existence and continuing liability for its
obligations under the Financing Documents or the corporate existence and good
standing of the successor entity and of its power and authorization to assume
the obligations of the Parent and/or the Borrower, as the case may be, under
the Financing Documents, (y) if requested by the Paying Agent,
documentation in form and substance reasonably satisfactory to the Required
Lenders, pursuant to which such successor entity assumes and agrees to pay and
perform the obligations of the Parent and/or the Borrower, as the case may be,
under the Financing Documents, and (z) legal opinions in form and
substance reasonably satisfactory to the Required Lenders with respect to the
transactions effecting such reincorporation, domestication and/or assumption,
(II) after giving effect to such reincorporation, domestication and/or
assumption, (x) the Parent or its successor entity continues to own and


 


54

















 


control the Borrower or its
successor entity, (y) the Required Lenders are satisfied that such
successor entity is of comparable credit quality to the Parent and/or the
Borrower, as the case may be, and (z) no Default or Event of Default has
occurred and is continuing either before or immediately after the consummation
of such reincorporation, domestication and/or assumption.


 


(c)           Neither Section
6.10(a) nor any other provision of any of the Financing Documents shall be
deemed to prohibit the conversion or merger of the Borrower into a Luxembourg
partnership or other legal entity organized under Luxembourg law, provided
that each of the conditions and requirements set forth in Section 6.10(b)
shall also apply to such conversion or merger.


 


(d)           Upon the satisfaction
(or waiver in accordance with Section 10.01) of the conditions set forth
in this Section 6.10, a Successor (or other successor referred to in Section 6.10(b))
to the Borrower or the Parent shall succeed, and may exercise every right and
power of, the Borrower or the Parent under this Agreement and the Notes and the
other Financing Documents with the same effect as if such Successor (or other
successor referred to in Section 6.10(b)) had been originally named as the
Borrower or the Parent herein and in the Notes and any other Financing
Documents, and the Borrower or the Parent, as the case may be, shall be
relieved of and released from its obligations under this Agreement and the
Notes and the other Financing Documents.


 


6.11        Transactions with Affiliates.   The Parent will not, and will not
permit any Subsidiary to, directly or indirectly, pay any funds to or for the
account of, make any investment (whether by acquisition of Stock or
indebtedness, by loan, advance, transfer of property, guarantee or other
agreement to pay, purchase or service, directly or indirectly, any Debt, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
tangible or intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with, any
Affiliate (collectively, “Affiliate
Transactions”);  provided, however, that the foregoing provisions of this Section
6.11 shall not prohibit the Parent or any of its Subsidiaries from:


 


(a)           making
Restricted Payments (including, for this purpose, transactions expressly
excluded from the definition of a Restricted Payment) permitted by Section 6.12,



 


(b)           making
sales to or purchases from any Affiliate and, in connection therewith,
extending credit or making payments, or from making payments for services
rendered by any Affiliate, if such sales or purchases are made or such services
are rendered in the ordinary course of business and on terms and conditions at
least as favorable to the Parent or such Subsidiary as the terms and conditions
which the Parent would reasonably expect to be obtained in a similar
transaction with a Person which is not an Affiliate at such time, 


 


(c)           making
payments of principal, interest and premium on any Debt of the Parent or such
Subsidiary held by an Affiliate if the terms of such Debt are at least as
favorable to the Parent or such Subsidiary as the terms which the Parent would


 


55

















 


reasonably
expect to have been obtained at the time of the creation of such Debt from a
lender which was not an Affiliate, 


 


(d)           participating
in, or effecting any transaction in connection with, any joint enterprise or
other joint arrangement with any Affiliate if the Parent or such Subsidiary
participates in the ordinary course of its business and on a basis no less
advantageous than the basis on which such Affiliate participates, 


 


(e)           paying
or granting reasonable compensation and benefits to any director, officer,
employee or agent of the Parent or any Subsidiary, or


 


(f)            engaging
in any Affiliate Transaction not otherwise addressed in subsections (a) through (e) of this Section 6.11, the
terms of which are not less favorable to the Parent or such Subsidiary than
those that the Parent or such Subsidiary would reasonably expect to be obtained
in a comparable transaction at such time with a Person which is not an
Affiliate.


 


6.12        Restricted Payments.   The Parent will not, and will not permit any Subsidiary to,
declare or make any Restricted Payment unless, after giving effect thereto, the
aggregate of all Restricted Payments declared or made after September 30, 2003
does not exceed an amount equal to the sum of (a) $4,800,000,000 plus (b)
an amount equal to 50% of Consolidated Net Income, if positive (or an amount
equal to 100% of Consolidated Net Income, if negative for such period) for the
period from October 1, 2003 through the end of the then most recently ended
fiscal quarter of the Parent (treated for this purpose as a single accounting
period), plus
(c) the aggregate cash proceeds (net of underwriting commissions)
received by the Parent (other than from a Subsidiary) from the issuance or sale
after September 30, 2003 of Stock or Stock Equivalents of the Parent (other
than the proceeds of any Stock or Stock Equivalent which by its terms is
subject to redemption otherwise than at the sole option of the Parent); provided,
that nothing in this Section 6.12 shall prohibit (i) a Subsidiary from making
Restricted Payments to the Parent or to any other Subsidiary or (ii) the
payment of any dividend or distribution within 60 days after the declaration
thereof if such declaration was not prohibited by this Section 6.12.


 


6.13        Financial Covenants.


 


(a)           Consolidated Net
Worth.  The Parent will not permit
Consolidated Net Worth as of the last day of any fiscal quarter to be less than
the sum of (a) $21,000,000,000 plus (b) an aggregate amount equal to 50%
of its Consolidated Net Income (but in each case only if a positive number) for
each completed fiscal quarter beginning with the period from October 1, 2003
through the end of the then most recently ended fiscal quarter of the Parent
(treated for this purpose as a single accounting period) plus (c) an amount equal to 100% of the
net proceeds of any issuance by the Parent after the date hereof of Stock or
Stock Equivalents.


 


(b)           Consolidated
Leverage Ratio.  The Parent will not
permit the Consolidated Leverage Ratio at any time to be greater than 3.5 to
1.0.


 


6.14        Subsidiary Guarantors.   The Borrower will cause each Subsidiary of
the Borrower that now or hereafter Guarantees any Material Debt of the Borrower
for or in respect of borrowed money (other than Debt of the Borrower to any
other Subsidiary) to promptly


 


56

















 


thereafter (and in any event
within 30 days of executing such Guarantee) cause such Subsidiary to (a)
become a Subsidiary Guarantor by executing and delivering to the Paying Agent a
Subsidiary Guaranty, and (b) deliver to the Paying Agent documents of the types
referred to in clause (iii) of Section 4.01(a) and favorable opinions of
counsel to such Subsidiary (which shall cover, among other things, the
legality, validity, binding effect and enforceability of the Subsidiary
Guaranty of such Subsidiary), all in form, content and scope reasonably
satisfactory to the Paying Agent.


 


6.15        Use of Proceeds.   The proceeds of each Credit Extension made under this Agreement
will be used by the Borrower for the purpose of refinancing existing Debt,
working capital, the making of capital expenditures and other lawful corporate
purposes.  None of such proceeds will be
used, directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of buying or carrying any “margin stock” within the meaning of
Regulation U of the FRB.


 


ARTICLE
VII.

EVENTS OF DEFAULT AND REMEDIES


 


7.01        Events of Default.  
Any of the following events, if not waived pursuant to Section
10.01, shall constitute an Event of Default:


 


(a)           any
principal of any Loan or any L/C Obligation shall not be paid when due, or any
interest, any fees or any other amount payable hereunder shall not be paid
within three Business Days of the due date thereof;


 


(b)           the
Parent shall fail to observe or perform any covenant contained in Section
6.08, 6.12 or 6.13;


 


(c)           the
Parent shall fail to observe or perform any covenant contained in Section
6.07 or Sections 6.09 to 6.11, inclusive, and such failure
shall not be remedied within five days after any Responsible Officer obtains
actual knowledge thereof;


 


(d)           either
Principal Obligor shall fail to observe or perform any covenant or agreement
contained in this Agreement (other than those covered by clause (a), (b) or (c)
of this Section 7.01) for 10 days after notice thereof has been given to
the Parent by the Paying Agent at the request of any Lender;


 


(e)           any
representation, warranty, certification or statement made in writing by any
Obligor in the Financing Documents or in any certificate, financial statement
or other document required to be delivered to the Paying Agent or any of the
Lenders pursuant to the Financing Documents shall prove to have been incorrect
in any material respect when made (or deemed made);


 


(f)            the
Parent or any Subsidiary shall fail to make any payment when due (whether at
scheduled maturity, by mandatory prepayment, by acceleration or otherwise) in
respect of any Material Debt (after giving effect to any applicable grace
period);


 


57

















 


(g)           any
event or condition shall occur that results in the acceleration of the maturity
of, including a requirement for mandatory prepayment of, any Material Debt;


 


(h)           except
in connection with a transaction permitted by Section 6.10 or in
connection with a scheme of arrangement pursuant to which any of the direct
shareholders of the Parent become indirect shareholders thereof through a newly
established holding company, (i) any corporate action is taken authorizing the
winding up, liquidation, any arrangement or the taking of any other similar
action of or with respect to the Parent or authorizing any corporate action to
be taken to facilitate any such winding up, liquidation, arrangement,
reorganization or amalgamation or other similar action or any members’
voluntary winding up of the Parent as provided under the Bermuda Companies Law
shall be commenced;


 


(ii)           (A) any petition shall
be filed seeking the liquidation, any arrangement or the taking of any other
similar action of or with respect to the Parent by the Registrar of Companies
in Bermuda, or by any other Person or Persons, or (B) any petition shall be
presented for the winding up of the Parent to a court of Bermuda as provided
with the Bermuda Companies Law, or (C) any creditors’ winding up of the Parent
as provided under the Bermuda Companies Law shall be commenced, or (D) any
receiver shall be appointed by a creditor of the Parent or by a court of
Bermuda on the application of a creditor of the Parent as provided under any instrument
giving rights for the appointment of a receiver thereto, and in the case of any
such petition, winding up, appointment, order or other matter, such petition,
winding up, appointment, order or other matter, shall remain undismissed and
unstayed for a period of 60 days;


 


(iii)          the Parent or any
Significant Subsidiary shall (A) commence a voluntary case or other proceeding
seeking liquidation, winding up, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or substantially all of
its property, or (B) consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other similar
proceeding commenced against it, or (C) make a general assignment for the
benefit of creditors, or (D) fail generally to pay its debts as they become
due, or (E) take any corporate action to authorize any of the foregoing; or


 


(iv)          (A) an involuntary case
or other proceeding shall be commenced against the Parent or any Significant
Subsidiary seeking liquidation, winding up, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
substantially all of its property, and such involuntary case or other
proceeding shall remain in effect and undismissed and unstayed for a period of
60 days; or (B) an order for relief shall be entered against the Parent or any
Significant Subsidiary under the bankruptcy laws of any jurisdiction as now or
hereafter in effect;


 


(i)            a
judgment or order for the payment of money in excess of $30,000,000 (after
deducting amounts covered by insurance, except to the extent that the insurer
providing such insurance has declined such coverage or indemnification) shall
be rendered against the Parent or


 


58

















 


any Subsidiary and, within 60 days after entry
thereof, such judgment or order is not discharged or execution thereof stayed
pending appeal, or within 60 days after the expiration of any such stay, such
judgment or order is not discharged;


 


(j)            (x)
any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the SEC under said
Act) of 40% or more of the outstanding shares of common stock of the Parent; or
(y) on the last day of any period of twelve consecutive calendar months, a
majority of members of the board of directors of the Parent shall no longer be
composed of individuals (i) who were members of said board of directors on the
first day of such twelve consecutive calendar month period or (ii) whose
election or nomination to said board of directors was approved by individuals
referred to in clause (i) above constituting at the time of such election or
nomination at least a majority of said board of directors, provided that
this clause (y) shall not be deemed to apply with respect to any Persons who
were members of said board of directors prior to September 30, 2003; and
provided, further, that this clause (j) shall not be deemed to apply to a
transaction, entered into as part of a transaction described in Section
6.10(b), pursuant to which any of the direct shareholders of the Parent become
the indirect shareholders thereof through a newly established holding company;


 


(k)           the
Parent or any Subsidiary shall fail to pay when due any amount owing by it in
respect of any performance bond, performance guaranty or bank guaranty issued
in lieu of a performance bond or performance guaranty (other than a payment
which is disputed by the Parent or such Subsidiary in good faith), and the
aggregate of all such defaulted payments shall exceed $50,000,000 at any one
time for the Parent and its Subsidiaries;


 


(l)            any
member of the ERISA Group shall fail to pay when due an amount or amounts
aggregating in excess of $5,000,000 which it shall have become liable to pay
under Title IV of ERISA; or notice of intent to terminate a Material Plan shall
be filed under Title IV of ERISA by any member of the ERISA Group, any plan
administrator or any combination of the foregoing; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate, to impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or to cause a
trustee to be appointed to administer any Material Plan; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any Material Plan must be terminated; or there shall occur a
complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a current payment
obligation in excess of $25,000,000;


 


(m)          the
Borrower shall cease to be a Wholly-Owned Consolidated Subsidiary of the
Parent; or


 


(n)           any
Financing Document shall cease to be valid and enforceable against any Obligor
party thereto (except for the termination of a Subsidiary Guaranty in
accordance with its terms), or any Obligor shall so assert in writing.


 


59

















 


7.02        Remedies Upon Event of Default.   If any Event of Default occurs and is
continuing, the Paying Agent shall, at the request of, or may, with the consent
of, the Required Lenders, take any or all of the following actions:


 


(a)           declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated; 


 


(b)           declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Financing Document to be immediately due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; 


 


(c)           require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and


 


(d)           exercise
on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Financing Documents or applicable law;


 


provided, however, that in
the case of any of the Events of Default specified in Section 7.01(h),
the obligation of each Lender to make Loans and any obligation of the L/C
Issuers to make L/C Credit Extensions shall automatically terminate, the unpaid
principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, and the obligation of the
Borrower to Cash Collateralize the L/C Obligations as aforesaid shall
automatically become effective, in each case without further act of the Paying
Agent or any Lender.


 


7.03        Application of Funds.   After the exercise of remedies provided for in Section
7.02 (or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to Section 7.02), any amounts
received on account of the Obligations shall be applied by the Paying Agent in
the following order:


 


First, to payment of that portion of the
Obligations constituting fees, indemnities, expenses and other amounts
(including reasonable Attorney Costs and amounts payable under Article III)
payable to the Paying Agent in its capacity as such;


 


Second, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (including
reasonable Attorney Costs and amounts payable under Article III) payable
to the L/C Issuers in their capacity as such, ratably among them in proportion
to the amounts described in this clause Second payable to them;


 


Third, to payment of that portion of the
Obligations constituting fees, indemnities and other amounts (other than
principal and interest) payable to the Lenders (including reasonable Attorney
Costs and amounts payable under Article III), ratably among them in
proportion to the amounts described in this clause Third payable to
them;


 


60

















 


Fourth, to payment of that portion of the
Obligations constituting accrued and unpaid interest on the Loans and L/C
Borrowings, ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth payable to them;


 


Fifth, to payment of that portion of the
Obligations constituting unpaid principal of the Loans and L/C Borrowings,
ratably among the Lenders in proportion to the respective amounts described in
this clause Fifth held by them;


 


Sixth, to the Paying Agent for the account of
each L/C Issuer, to Cash Collateralize that portion of L/C Obligations
comprised of the aggregate undrawn amount of the Letters of Credit issued by
such L/C Issuer; and


 


Seventh, to the payment of all other
Obligations of the Obligors owing under or in respect of the Financing
Documents that are due and payable to the Paying Agent and the Lenders on such
date, ratably based upon the respective aggregate amounts of all such
Obligations owing to the Paying Agent and the Lenders on such date; and


 


Last, the balance, if any, after all of the
Obligations have been indefeasibly paid in full, to the Borrower or as
otherwise required by Law.


 


Subject to Section 2.03(c),
amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause Sixth above shall be applied to satisfy
drawings under such Letters of Credit as they occur.  If any amount remains on deposit as Cash Collateral after all
Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set
forth above.


 


ARTICLE
VIII.

PAYING AGENT


 


8.01        Appointment and Authorization of Paying
Agent.  


 


(a)           Each Lender hereby
irrevocably appoints, designates and authorizes the Paying Agent to take such
action on its behalf under the provisions of this Agreement and each other
Financing Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Financing
Document, together with such powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere herein or in any other Financing Document, the Paying Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Paying Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Financing Document or otherwise exist against
the Paying Agent.  Without limiting the
generality of the foregoing sentence, the use of the term “agent” herein and in
the other Financing Documents with reference to the Paying Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship
between independent contracting parties.


 


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(b)           Each L/C Issuer shall
act on behalf of the Lenders with respect to any Letters of Credit issued by it
and the documents associated therewith, and such L/C Issuer shall have all of
the benefits and immunities (i) provided to the Paying Agent in this Article
VIII with respect to any acts taken or omissions suffered by each L/C
Issuer in connection with Letters of Credit issued by it or proposed to be
issued by it and the applications and agreements for letters of credit
pertaining to such Letters of Credit as fully as if the term “Paying Agent” as
used in this Article VIII and in the definition of “Agent-Related
Person” included each L/C Issuer with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to each L/C Issuer.


 


8.02        Delegation of Duties.   The Paying Agent may execute any of its duties under this
Agreement or any other Financing Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.  The Paying Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects in the absence of gross negligence or willful misconduct.


 


8.03        Liability of Paying Agent.   No Agent-Related Person shall (a) be liable for any action
taken or omitted to be taken by any of them under or in connection with this
Agreement or any other Financing Document or the transactions contemplated
hereby (except for its own gross negligence or willful misconduct in connection
with its duties expressly set forth herein), or (b) be responsible in any
manner to any Lender or participant for any recital, statement, representation
or warranty made by any Obligor or any officer thereof, contained herein or in
any other Financing Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Paying Agent under
or in connection with, this Agreement or any other Financing Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Financing Document, or for any failure of any Obligor or
any other party to any Financing Document to perform its obligations hereunder
or thereunder.  No Agent-Related Person
shall be under any obligation to any Lender or participant to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Financing Document, or to
inspect the properties, books or records of any Obligor or any Affiliate
thereof.


 


8.04        Reliance by Paying Agent.  


 


(a)           The Paying Agent shall
be entitled to rely, and shall be fully protected in relying, upon any writing,
communication, signature, resolution, representation, notice, consent, certificate,
affidavit, letter, telegram, facsimile, telex or telephone message, electronic
mail message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to any Obligor), independent accountants and other experts selected by the
Paying Agent.  The Paying Agent shall be
fully justified in failing or refusing to take any action under any Financing
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action.  The Paying Agent
shall in all cases be fully protected in acting, or in refraining from acting,


 


62

















 


under this Agreement or any other Financing Document in accordance with
a request or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders.


 


(b)           For
purposes of determining compliance with the conditions specified in Section 4.01,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Paying Agent shall have received notice
from such Lender prior to the proposed Closing Date specifying its objection
thereto.


 


8.05        Notice of Default.   The
Paying Agent shall not be deemed to have knowledge or notice of the occurrence
of any Default, except with respect to defaults in the payment of principal,
interest and fees required to be paid to the Paying Agent for the account of
the Lenders, unless the Paying Agent shall have received written notice from a
Lender or the Borrower referring to this Agreement, describing such Default and
stating that such notice is a “notice of default.”  The Paying Agent will notify the Lenders of its receipt of any
such notice.  The Paying Agent shall
take such action with respect to such Default as may be directed by the
Required Lenders in accordance with Article VII; provided, however,
that unless and until the Paying Agent has received any such direction, the
Paying Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default as it shall deem
advisable or in the best interest of the Lenders.


 


8.06        Credit Decision; Disclosure of Information by Paying
Agent.   Each Lender acknowledges
that no Agent-Related Person has made any representation or warranty to it, and
that no act by the Paying Agent hereafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Obligor or any
Affiliate thereof, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Lender as to any matter, including whether
Agent-Related Persons have disclosed material information in their
possession.  Each Lender represents to
the Paying Agent that it has, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Obligors and their respective Subsidiaries, and all
applicable bank or other regulatory Laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower hereunder. 
Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Financing Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower
and the other Obligors.  Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Paying Agent herein, the Paying Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other


 


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condition or creditworthiness of any of the Obligors or any of their
respective Affiliates which may come into the possession of any Agent-Related
Person.


 


8.07        Indemnification of Paying Agent.   Whether or not the transactions
contemplated hereby are consummated, the Lenders shall indemnify upon demand
each Agent-Related Person (to the extent not reimbursed by or on behalf of any
Obligor and without limiting the obligation of any Obligor to do so), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that
no Lender shall be liable for the payment to any Agent-Related Person of any
portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from such Agent-Related Person’s own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the
Required Lenders shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section. 
Without limitation of the foregoing, each Lender shall reimburse the
Paying Agent upon demand for its ratable share of any costs or out-of-pocket
expenses (including Attorney Costs) incurred by the Paying Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, any other Financing Document, or any document contemplated by
or referred to herein, to the extent that the Paying Agent is not reimbursed
for such expenses by or on behalf of the Borrower.  The undertaking in this Section shall survive termination of
the Commitments, the payment of all other Obligations and the resignation of
the Paying Agent.


 


8.08        Paying Agent in its Individual
Capacity.   Bank of America and its
Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
each of the Obligors and their respective Affiliates as though Bank of America
were not the Paying Agent or an L/C Issuer hereunder and without notice to or
consent of the Lenders.  The Lenders
acknowledge that, pursuant to such activities, Bank of America or its
Affiliates may receive information regarding any Obligor or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of such Obligor or such Affiliate) and acknowledge that the Paying Agent
shall be under no obligation to provide such information to them.  With respect to its Loans and any Letters of
Credit issued by it as an L/C Issuer, Bank of America shall have the same
rights and powers under this Agreement as any other Lender or L/C Issuer and
may exercise such rights and powers as though it were not the Paying Agent or
an L/C Issuer, and the terms “Lender” and “L/C Issuer” include Bank of America
in its individual capacity.


 


8.09        Successor Paying Agent.   The Paying Agent may resign as Paying Agent upon 30 days’
notice to the Lenders and the Borrower; provided that any such
resignation by Bank of America shall also constitute its resignation as an L/C
Issuer.  If the Paying Agent resigns
under this Agreement, the Required Lenders shall appoint from among the Lenders
a successor Paying Agent for the Lenders, which successor Paying Agent shall be
consented to by the Borrower at all times other than during the existence of an
Event of Default (which consent of the Borrower shall not be unreasonably
withheld or delayed).  If no successor
Paying Agent is appointed prior to the effective date of the resignation of the
Paying Agent, the Paying Agent may appoint, after


 


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consulting with the Lenders and the Borrower, a successor Paying Agent
from among the Lenders.  Upon the
acceptance of its appointment as successor Paying Agent hereunder, the Person
acting as such successor Paying Agent shall succeed to all the rights, powers
and duties of the retiring Paying Agent and L/C Issuer and the respective terms
“Paying Agent,” and “L/C Issuer” shall mean such successor Paying Agent and L/C
Issuer and the retiring Paying Agent’s appointment, powers and duties as Paying
Agent shall be terminated and the retiring L/C Issuer’s rights, powers and
duties as such shall be terminated, without any other or further act or deed on
the part of such retiring L/C Issuer or any other Lender, other than the
obligation of the successor L/C Issuer to issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such
succession or to make other arrangements satisfactory to the retiring L/C
Issuer to effectively assume the obligations of the retiring L/C Issuer with
respect to such Letters of Credit.  After
any retiring Paying Agent’s resignation hereunder as Paying Agent, the
provisions of this Article VIII and Sections 10.04 and 10.05
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Paying Agent under this Agreement.  If no successor Paying Agent has accepted appointment as Paying
Agent by the date which is 30 days following a retiring Paying Agent’s notice
of resignation, the retiring Paying Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Paying Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above.


 


8.10        Paying Agent May File Proofs of Claim.   In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Obligor,
the Paying Agent (irrespective of whether the principal of any Loan or L/C
Obligation shall then be due and payable as herein expressed or by declaration
or otherwise and irrespective of whether the Paying Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in
such proceeding or otherwise


 


(a)           to file and prove a claim for the whole
amount of the principal and interest owing and unpaid in respect of the Loans,
L/C Obligations and all other Obligations that are owing and unpaid and to file
such other documents as may be necessary or advisable in order to have the
claims of the Lenders and the Paying Agent (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Lenders
and the Paying Agent and their respective agents and counsel and all other
amounts due the Lenders and the Paying Agent under Sections 2.03(i) and (j),
2.08 and 10.04) allowed in such judicial proceeding; and


 


(b)           to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same;


 


and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Lender to make such payments to the Paying Agent and, in the event that
the Paying Agent shall consent to the making of such payments directly to the
Lenders, to pay to the Paying Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Paying Agent and its
agents and counsel, and any other amounts due the Paying Agent under Sections
2.08 and 10.04.


 


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Nothing contained herein shall be deemed to authorize the Paying Agent
to authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Paying Agent to vote in respect
of the claim of any Lender in any such proceeding.


 


8.11        Guaranty Matters. 
 The Lenders irrevocably
authorize the Paying Agent, at its option and in its discretion, to release any
Subsidiary Guarantor from its obligations under such Subsidiary Guarantor’s
Subsidiary Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder.  Upon
request by the Paying Agent at any time, the Required Lenders will confirm in
writing the Paying Agent’s authority to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 8.11.


 


8.12        Other Agents; Arrangers and
Managers.   None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
“Co-Administrative Agent”, “Co-Documentation Agent”, “Co-Syndication Agent,”
“Joint Lead Arranger” or “Joint Bookrunner” shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than,
in the case of such Lenders, those applicable to all Lenders as such.  Without limiting the foregoing, none of the
Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. 
Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into
this Agreement or in taking or not taking action hereunder.


 


ARTICLE IX.

GUARANTEE


 


9.01        The Guarantee.   The Parent hereby unconditionally guarantees
the full and punctual payment when due (whether at stated maturity, by
mandatory prepayment, by acceleration or otherwise) of the principal of and
interest on the Loans, the Notes, the L/C Borrowings, and all other amounts
whatsoever at any time or from time to time payable or becoming payable under
any of the Financing Documents.  This is
a continuing guarantee and a guarantee of payment and not merely of collection.  Upon failure by the Borrower to pay punctually
any such amount when due as aforesaid, the Parent shall forthwith on demand pay
the amount not so paid at the place and in the manner specified in the
applicable Financing Document.


 


9.02        Guarantee Unconditional.   The obligations of the Parent hereunder
shall be unconditional and absolute, and, without limiting the generality of
the foregoing, shall not be released, discharged or otherwise affected, at any
time by:


 


(i)            any extension, renewal, settlement,
compromise, waiver or release in respect of any obligation of the Borrower
under any Financing Document, by operation of law or otherwise;


 


(ii)           any modification or amendment of or
supplement to any Financing Document;


 


(iii)          any release, impairment, non-perfection or
invalidity of any direct or indirect security for any obligation of the
Borrower under any Financing Document;


 


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(iv)          any change in the corporate existence,
structure or ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or its assets
or any resulting release or discharge of any obligation of the Parent or the
Borrower contained in any Financing Document;


 


(v)           the existence of any claim, set-off or other
rights which the Parent may have at any time against the Borrower, the Paying
Agent, any Lender or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory counterclaim;


 


(vi)          any invalidity or unenforceability relating
to or against the Borrower for any reason of any Financing Document, or any
provision of applicable law or regulation purporting to prohibit the payment by
the Borrower, in the currency and funds and at the time and place specified
herein, of any amount payable by it under any Financing Document; or


 


(vii)         any other act or omission to act or delay of
any kind by the Borrower, the Paying Agent, any Lender or any other Person, or
any other circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge or defense of a guarantor
or surety.


 


9.03        Discharge Only upon Payment in Full;
Reinstatement in Certain Circumstances.  
This Agreement shall remain in full force and effect until the
Commitments shall have terminated and the principal of and interest on the
Loans, the Notes, the L/C Borrowings, and all other amounts whatsoever payable
by the Borrower under the Financing Documents shall have been finally paid in
full.  If at any time any payment of any
such amount payable by the Borrower under the Financing Documents is rescinded
or must be otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Parent’s obligations hereunder
with respect to such payment shall be reinstated at such time as though such
payment had been due but not made at such time.


 


9.04        Waiver by the Parent.   The Parent irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as well as
any requirement that at any time any action be taken by any Person against the
Borrower or any other Person.


 


9.05        Subrogation.  Upon making any payment hereunder with
respect to the Borrower, the Parent shall be subrogated to the rights of the
payee against the Borrower with respect to such payment; provided that
the Parent shall not enforce any payment by way of subrogation until all
amounts of principal of and interest on the Loans and all other amounts payable
by the Borrower under the Financing Documents have been paid in full and the
Commitments have been terminated.


 


9.06        Stay of Acceleration.   In the event that
acceleration of the time for payment of any amount payable by the Borrower
under any Financing Document is stayed upon insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration


 


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under the terms of this Agreement shall nonetheless be payable by the
Parent hereunder forthwith on demand by the Required Lenders.


 


ARTICLE X.

MISCELLANEOUS


 


10.01      Amendments, Etc.   No
amendment or waiver of any provision of this Agreement or any other Financing
Document, and no consent to any departure by the Borrower or any other Obligor
therefrom, shall be effective unless in writing signed by the Required Lenders
and the Borrower or the applicable Obligor, as the case may be, and
acknowledged by the Paying Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such amendment, waiver or
consent shall:


 


(a)           waive
any condition set forth in Section 4.01(a) without the written consent
of each Lender;


 


(b)           extend
or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 7.02) without the written consent of
such Lender;


 


(c)           postpone
any date fixed by this Agreement or any other Financing Document for any
payment of principal, interest, fees or other amounts due to the Lenders (or
any of them) hereunder or under any other Financing Document without the
written consent of each Lender directly affected thereby;


 


(d)           reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Financing
Document without the written consent of each Lender directly affected thereby; provided,
however, that only the consent of the Required Lenders shall be
necessary to amend the definition of “Default Rate” or to waive any obligation
of the Borrower to pay interest at the Default Rate;


 


(e)           change
Section 2.12 or Section 7.03 in a manner that would
alter the pro  rata sharing of payments required thereby without
the written consent of each Lender;


 


(f)            change
any provision of this Section or the definition of “Required Lenders” or
any other provision hereof specifying the number or percentage of Lenders
required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of
each Lender; or


 


(g)           except
as contemplated by Section 6.10, release the Parent from its obligations
under Section 9 without the written consent of each Lender;


 


and, provided  further,
that (i) no amendment, waiver or consent shall, unless in writing and signed by
each L/C Issuer in addition to the Lenders required above, affect the rights or
duties of such L/C Issuer under this Agreement or any Letter of Credit
Application relating to any Letter


 


68

















 


of Credit issued or to be
issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Paying Agent in addition to the Lenders required above, affect
the rights or duties of the Paying Agent under this Agreement or any other
Financing Document; and (iii) Section 10.07(h) may not be amended, waived
or otherwise modified without the consent of each Granting Lender all or any
part of whose Loans are being funded by an SPC at the time of such amendment,
waiver or other modification; and (iv) the Fee Letters may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties
thereto.  Notwithstanding anything to
the contrary herein, no Defaulting Lender shall have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the
Commitment of such Lender may not be increased or extended without the consent
of such Lender.


 


10.02      Notices and Other Communications; Facsimile
Copies.   


 


(a)           General.  Unless otherwise expressly provided herein,
all notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). 
All such written notices shall be mailed, faxed or delivered to the
applicable address, facsimile number or (subject to subsection (c) below)
electronic mail address, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)            if to the Borrower, the Paying Agent or an
L/C Issuer, to the address, facsimile number, electronic mail address or
telephone number specified for such Person on Schedule 10.02 or to
such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other parties;
and 


 


(ii)           if to any other Lender, to the address,
facsimile number, electronic mail address or telephone number specified in its
Administrative Questionnaire (a copy of each of which shall be provided by the
Paying Agent to the Borrower upon its request) or to such other address,
facsimile number, electronic mail address or telephone number as shall be
designated by such party in a notice to the Borrower, the Paying Agent and each
L/C Issuer.


 


All such notices and other communications shall be deemed to be given
or made upon the earlier to occur of (i) actual receipt by the relevant party
hereto and (ii) (A) if delivered by hand or by courier, when signed for by or
on behalf of the relevant party hereto; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by
facsimile, when sent and receipt has been confirmed by telephone; and (D) if
delivered by electronic mail (which form of delivery is subject to the
provisions of subsection (c) below), when delivered; provided, however,
that notices and other communications to the Paying Agent and the L/C Issuers
pursuant to Article II shall not be effective until actually
received by such Person.  In no event
shall a voicemail message be effective as a notice, communication or confirmation
hereunder.


 


(b)           Effectiveness
of Facsimile Documents and Signatures. 
Financing Documents may be transmitted and/or signed by facsimile.  The effectiveness of any such documents and
signatures shall, subject to applicable Law, have the same force and effect as
manually-signed


 


69

















 


originals and shall be binding on all Obligors, the Paying Agent and
the Lenders.  The Paying Agent may also
require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the
failure to request or deliver the same shall not limit the effectiveness of any
facsimile document or signature.


 


(c)           Limited
Use of Electronic Mail.  Electronic
mail and Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.01, and to distribute Financing Documents for
execution by the parties thereto, and may not be used for any other purpose.


 


(d)           Reliance
by Paying Agent and Lenders.  The
Paying Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices) purportedly given by or on behalf of the
Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the recipient,
varied from any confirmation thereof. 
The Borrower shall indemnify each Agent-Related Person and each Lender
from all losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the
Borrower.  All telephonic notices to and
other communications with the Paying Agent may be recorded by the Paying Agent,
and each of the parties hereto hereby consents to such recording.


 


10.03      No Waiver; Cumulative Remedies.   No failure by any
Lender or the Paying Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


10.04      Attorney Costs, Expenses and Taxes.   The Borrower agrees (a) to pay or
reimburse the Paying Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of this
Agreement and the other Financing Documents and any amendment, waiver, consent
or other modification of the provisions hereof and thereof (whether or not the
transactions contemplated hereby or thereby are consummated), and the
consummation and administration of the transactions contemplated hereby and
thereby, including all reasonable Attorney Costs, and (b) to pay or reimburse
the Paying Agent and each Lender for all costs and expenses incurred while a
Default has occurred and is continuing in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies under this
Agreement or the other Financing Documents (including all such costs and
expenses incurred during any “workout” or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs.  The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees and taxes
related thereto, and other out-of-pocket expenses incurred by the Paying Agent
and the cost of independent public accountants and other outside experts
retained by the Paying Agent or any Lender. 
All amounts due under this Section 10.04 shall be payable
within ten Business Days after demand therefor accompanied by an


 


70

















 


invoice in reasonable detail. 
The agreements in this Section shall survive the termination of the
Commitments and repayment of all other Obligations.


 


10.05      Indemnification by the Borrower.   Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each Agent-Related
Person, each Lender and their respective Affiliates, directors, officers,
employees, counsel, agents and attorneys-in-fact (collectively the “Indemnitees”)
from and against any and all liabilities, obligations, losses, damages,
penalties, claims, demands, actions, judgments, suits, costs, expenses and
disbursements (including reasonable Attorney Costs) of any kind or nature
whatsoever which may at any time be imposed on, incurred by or asserted against
any such Indemnitee in any way relating to or arising out of or in connection
with (a) while a Default has occurred and is continuing, the enforcement,
performance or administration of any Financing Document or any other agreement,
letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by an L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (c) any
actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Parent, any Subsidiary
or any other Obligor, or any Environmental Liability related in any way to the
Borrower, any Subsidiary or any other Obligor, or (d) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory (including any
investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the “Indemnified
Liabilities”), in all cases, whether or not caused by or arising, in whole or
in part, out of the negligence of the Indemnitee; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
liabilities, obligations, losses, damages, penalties, claims, demands, actions,
judgments, suits, costs, expenses or disbursements are determined by a court of
competent jurisdiction by final and nonappealable judgment to have resulted
from (i) the gross negligence or willful misconduct of such Indemnitee, (ii)
breach of the confidentiality provisions contained in Section 10.08
or (iii) a dispute solely among the Lenders. 
No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this
Agreement, nor shall any Indemnitee have any liability for any indirect,
consequential or punitive damages relating to this Agreement or any other
Financing Document or arising out of its activities in connection herewith or therewith
(whether before or after the Closing Date). 
All amounts due under this Section 10.05 shall be payable
within ten Business Days after demand therefor accompanied by an invoice in
reasonable detail.  The agreements in
this Section shall survive the resignation of the Paying Agent, the
replacement of any Lender, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Obligations.


 


10.06      Payments Set Aside.  
To the extent that any payment by or on behalf of the Borrower is
made to the Paying Agent or any Lender, or the Paying Agent or any Lender
exercises its right of set-off, and such payment or the proceeds of such
set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Paying Agent or such Lender in its


 


71

















 


discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and
effect as if such payment had not been made or such set-off had not occurred,
and (b) each Lender severally agrees to pay to the Paying Agent upon demand its
applicable share of any amount so recovered from or repaid by the Paying Agent,
plus interest thereon from the date of such demand to the date such payment is
made at a rate per annum equal to the Federal Funds Rate from time to time in
effect.


 


10.07      Successors and Assigns.


 


(a)           The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted
hereby, except that, other than as contemplated by Section 6.10,
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender and no
Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an Eligible Assignee in accordance with the provisions
of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) or (i) of this Section, or (iv) to an SPC in accordance
with the provisions of subsection (h) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void).  Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Indemnitees)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.


 


(b)           Any
Lender may at any time assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in L/C Obligations) at the time owing to
it); provided that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender’s Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund (as defined in subsection (g) of this Section)
with respect to a Lender, the aggregate amount of the Commitment (which for
this purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Paying Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $5,000,000  unless each of the Paying Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed); (ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations under
this Agreement with respect to the Loans or the Commitment assigned; (iii) any
assignment of a Commitment must be approved by the Paying Agent and each L/C
Issuer unless the Person that is the proposed assignee is itself a Lender
(whether or not the proposed assignee would otherwise qualify as an Eligible
Assignee); and (iv) the parties to each assignment shall execute and deliver to
the Paying Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500.  Subject to
acceptance


 


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and recording thereof by the Paying Agent pursuant to
subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05,
10.04 and 10.05 with respect to facts and circumstances occurring
prior to the effective date of such assignment).  Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender, and the Note theretofore held by the
assignor Lender shall be returned to the Borrower in exchange for a new Note,
payable to the assignee Lender and reflecting its retained interest (if any)
hereunder.  Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this subsection shall be treated for purposes of this Agreement as a
sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


(c)           The
Paying Agent, acting solely for this purpose as an agent of the Borrower, shall
maintain at the Paying Agent’s Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of the Loans and
L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the “Register”).  The
entries in the Register shall be conclusive, and the Borrower, the Paying Agent
and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.


 


(d)           Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Paying Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and/or the Loans (including such Lender’s participations in L/C Obligations)
owing to it); provided that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Paying 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.  Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall
retain the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification described in the first proviso to Section 10.01 that
directly affects such Participant. 
Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 3.01, 3.04
and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this
Section.  To the extent permitted by
law,


 


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each Participant also shall be entitled to the benefits of Section 10.09  as
though it were a Lender, provided such Participant agrees to be subject
to Sections 2.12 and 3.06 as though it were a Lender.


 


(e)           A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04  than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Borrower’s prior
written consent subject always to Section 3.06.


 


(f)            Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.


 


(g)           As
used herein, the following terms have the following meanings:


 


“Eligible Assignee” means (a) a
Lender, (b) an Affiliate of a Lender, (c) an Approved Fund, and (d) any other
Person (other than a natural person) approved by (i) the Paying Agent and each
L/C Issuer, and (ii) unless an Event of Default has occurred and is continuing,
the Borrower (each such approval not to be unreasonably withheld or delayed); provided
that notwithstanding the foregoing, “Eligible Assignee” shall not include the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


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


 


“Approved Fund” means any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


 


(h)           Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle identified as such in writing
from time to time by the Granting Lender to the Paying Agent and the Borrower
(an “SPC”) the option to provide all or any part of any Loan that such
Granting Lender would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a
commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to
exercise such option or otherwise fails to make all or any part of such Loan,
the Granting Lender shall be obligated to make such Loan pursuant to the terms
hereof.  Each party hereto hereby agrees
that (i) neither the grant to any SPC nor the exercise by any SPC of such
option shall increase the costs or expenses or otherwise increase or change the
obligations of the Borrower under this Agreement (including its obligations
under Section 3.04), (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender would be
liable, and (iii) the Granting Lender shall for all purposes, including the
approval of any amendment, waiver or other modification of any provision of any
Financing Document, remain the lender of record


 


74

















 


hereunder.  The making of a Loan
by an SPC hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender.  In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State
thereof.  Notwithstanding anything to
the contrary contained herein, any SPC may (i) with notice to, but without
prior consent of the Borrower and the Paying Agent and with the payment of a
processing fee of $3,500, assign all or any portion of its right to receive
payment with respect to any Loan to the Granting Lender and (ii) disclose on a
confidential basis any non-public information relating to its funding of Loans
to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPC.


 


(i)            Notwithstanding anything to the contrary contained
herein, any Lender that is a Fund may create a security interest in all or any
portion of the Loans owing to it and the Note, if any, held by it to the
trustee for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, provided that unless and
until such trustee actually becomes a Lender in compliance with the other
provisions of this Section 10.07, (i) no such pledge shall release
the pledging Lender from any of its obligations under the Financing Documents
and (ii) such trustee shall not be entitled to exercise any of the rights of a
Lender under the Financing Documents even though such trustee may have acquired
ownership rights with respect to the pledged interest through foreclosure or
otherwise.


 


(j)            Notwithstanding
anything to the contrary contained herein, if at any time any Lender that is
also an L/C Issuer assigns all of its Commitment and Loans pursuant to
subsection (b) above, such Lender may, upon 30 days’ notice to the
Borrower and the Lenders, resign as L/C Issuer.  In the event of any such resignation as L/C Issuer, the Borrower
shall be entitled to appoint from among the Lenders a successor L/C Issuer
hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of such Lender as L/C
Issuer.  If any such Lender resigns as
L/C Issuer, it shall retain all the rights and obligations of an L/C Issuer
hereunder with respect to all Letters of Credit issued by it in such capacity outstanding
as of the effective date of its resignation as L/C Issuer and all L/C
Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Loans or fund risk participations in Unreimbursed Amounts
pursuant to Section 2.03(c)). 


 


10.08      Confidentiality.  
Each of the Paying Agent and the Lenders shall maintain the
confidentiality of the Information (as defined below) and shall not use the
Information except for purposes relating directly to the Financing Documents
and the credit facility contemplated hereby, except that Information may be
disclosed by the Paying Agent and the Lenders (a) to their and their
Affiliates’ directors, officers, employees and agents whom they determine need
to know such Information in connection with matters relating directly to the
Financing Documents and the credit facility contemplated hereby, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential
and the Paying Agent and Lenders, as appropriate, shall be responsible for
breach of


 


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this Section by any of them), (b) to the extent requested by any
regulatory authority (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by
applicable laws or regulations or upon order of any court or administrative
agency of competent jurisdiction, to the extent required by such order and not
effectively stayed on appeal or otherwise, or as otherwise required by law; provided
that in the case of any intended disclosure under this clause (c), the
recipient thereof shall (unless otherwise required by applicable law) give the
Parent not less than five Business Days’ prior notice (or such shorter period
as may, in the good faith discretion of the recipient, be reasonable under the
circumstances or may be required by any court or agency under the
circumstances), specifying the Information involved and stating such
recipient’s intention to disclose such Information (including the manner and
extent of such disclosure) in order to allow the Parent an opportunity to seek
an appropriate protective order, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other
Financing Document or any action or proceeding relating to this Agreement or
any other Financing Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement in writing to be bound by the
provisions of this Section (and of which the Parent shall be a third party
beneficiary), to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any actual or prospective counterparty (or its advisors) to
any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the written consent of the Borrower referencing this
Section 10.08, or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section, a breach
of another confidentiality agreement to which the Paying Agent or such Lender
is a party or any other legal or fiduciary obligation of the Paying Agent or
such Lender or (y) becomes available to the Paying Agent or any Lender on a
nonconfidential basis from a source other than the Borrower.  For purposes of this Section, “Information”
means all information received from or on behalf of any Obligor relating to any
Obligor or any of their respective businesses, other than any such information
that the Paying Agent or any Lender proves is available to the Paying Agent or
any Lender on a nonconfidential basis prior to disclosure by any Obligor from a
source which is not, to the knowledge of the recipient, prohibited from
disclosing such information by a confidentiality agreement or other legal or
fiduciary obligation to the Obligors.  Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied with
its obligation to do so if such
Person has taken normal and reasonable precautions and exercised due care to
maintain the confidentiality of such Information.  Notwithstanding
anything herein to the contrary, “Information” shall not include, and the
Paying Agent and each Lender may disclose without limitation of any kind, any
information with respect to the “tax treatment” and “tax structure” (in each
case, within the meaning of Treasury Regulation Section 1.6011-4) of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Paying Agent or such
Lender relating to such tax treatment and tax structure; provided that
with respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to the tax treatment or tax structure
of the Loans, Letters of Credit and transactions contemplated hereby.  The provisions of the foregoing sentence are
intended solely to comply with the requirements of the presumption in Treasury
Regulation Section 1.6011-4(b)(3)(iii) and are not intended to permit
disclosure of any Information that is not subject to the requirements of such
presumption.  In addition to other


 


76

















 


remedies, the Obligors shall be entitled to specific performance and
injunctive and other equitable relief for breach of this Section 10.08.


 


10.09      Set-off.   In addition to any rights and remedies of the
Lenders provided by law, upon the occurrence and during the continuance of any
Event of Default, each Lender is authorized at any time and from time to time,
without prior notice to the Borrower or any other Obligor, any such notice
being waived by the Borrower (on its own behalf and on behalf of each Obligor)
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Lender to or for the
credit or the account of the respective Obligors against any and all
Obligations owing to such Lender hereunder or under any other Financing
Document, now or hereafter existing, irrespective of whether or not the Paying
Agent or such Lender shall have made demand under this Agreement or any other
Financing Document and although such Obligations may be contingent or unmatured
or denominated in a currency different from that of the applicable deposit or
indebtedness.  Each Lender agrees
promptly to notify the Borrower and the Paying Agent after any such set-off and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application.


 


10.10      Interest Rate Limitation.   Notwithstanding anything to the contrary contained in any
Financing Document, the interest paid or agreed to be paid under the Financing
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the “Maximum Rate”). 
If the Paying Agent or any Lender shall receive interest in an amount
that exceeds the Maximum Rate, the excess interest shall be applied to the
principal of the Loans or, if it exceeds such unpaid principal, refunded to the
Borrower.  In determining whether the
interest contracted for, charged, or received by the Paying Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of
the Obligations hereunder.


 


10.11      Counterparts.   This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.


 


10.12      Integration.   This
Agreement, together with the other Financing Documents, comprises the complete
and integrated agreement of the parties on the subject matter hereof and
thereof and supersedes all prior agreements, written or oral, on such subject
matter.  In the event of any conflict between
the provisions of this Agreement and those of any other Financing Document, the
provisions of this Agreement shall control; provided that the inclusion
of supplemental rights or remedies in favor of the Paying Agent or the Lenders
in any other Financing Document shall not be deemed a conflict with this
Agreement.  Each Financing Document was
drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.


 


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10.13      Survival of Representations and
Warranties.   All representations
and warranties made hereunder and in any other Financing Document or other
document delivered pursuant hereto or thereto or in connection herewith or
therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have
been or will be relied upon by the Paying Agent and each Lender, regardless of
any investigation made by the Paying Agent or any Lender or on their behalf and
notwithstanding that the Paying Agent or any Lender may have had notice or
knowledge of any Default at the time of any Credit Extension, and shall
continue in full force and effect as long as any Loan or any other Obligation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding.


 


10.14      Severability.   If
any provision of this Agreement or the other Financing Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other
Financing Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions.  The
invalidity of a provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.


 


10.15      Governing Law.   


 


(a)           THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE;  PROVIDED THAT THE PAYING AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.


 


(b)           ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
FINANCING DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN NEW YORK CITY OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PRINCIPAL
OBLIGOR, THE PAYING AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH PRINCIPAL OBLIGOR, THE PAYING AGENT AND
EACH LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION
IN RESPECT OF ANY FINANCING DOCUMENT OR OTHER DOCUMENT RELATED THERETO.  EACH PRINCIPAL OBLIGOR, THE PAYING AGENT AND
EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH STATE.  EACH PRINCIPAL OBLIGOR AGREES THAT A FINAL
JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT SHALL
BE CONCLUSIVE AND BINDING UPON IT AND WILL BE GIVEN EFFECT IN LUXEMBOURG TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND MAY BE ENFORCED IN ANY FEDERAL
OR


 


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NEW YORK STATE COURT SITTING IN NEW YORK CITY (OR ANY OTHER COURTS TO
THE JURISDICTION OF WHICH SUCH PRINCIPAL OBLIGOR IS OR MAY BE SUBJECT) BY A
SUIT UPON SUCH JUDGMENT, PROVIDED  THAT
SERVICE OF PROCESS IS EFFECTED UPON IT IN ONE OF THE MANNERS SPECIFIED HEREIN
OR AS OTHERWISE PERMITTED BY LAW.


 


(c)           EACH
PRINCIPAL OBLIGOR HEREBY IRREVOCABLY DESIGNATES AND APPOINTS CT CORPORATION
SYSTEM, HAVING AN OFFICE ON THE DATE HEREOF AT 111 EIGHTH AVENUE, NEW YORK, NEW
YORK 10011 AS ITS AUTHORIZED AGENT, TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF,
SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUIT, ACTION OR
PROCEEDING OF THE NATURE REFERRED TO IN SUBSECTION (b) ABOVE IN ANY
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY.  EACH PRINCIPAL OBLIGOR REPRESENTS AND
WARRANTS THAT SUCH AGENT HAS AGREED IN WRITING TO ACCEPT SUCH APPOINTMENT AND
THAT A TRUE COPY OF SUCH DESIGNATION AND ACCEPTANCE HAS BEEN DELIVERED TO THE
PAYING AGENT.  IF SUCH AGENT SHALL CEASE
SO TO ACT, EACH PRINCIPAL OBLIGOR COVENANTS AND AGREES TO DESIGNATE IRREVOCABLY
AND APPOINT WITHOUT DELAY ANOTHER SUCH AGENT SATISFACTORY TO THE PAYING AGENT
AND TO DELIVER PROMPTLY TO THE PAYING AGENT EVIDENCE IN WRITING OF SUCH OTHER
AGENT’S ACCEPTANCE OF SUCH APPOINTMENT.


 


(d)           EACH
PRINCIPAL OBLIGOR HEREBY CONSENTS TO PROCESS BEING SERVED IN ANY SUIT, ACTION,
OR PROCEEDING OF THE NATURE REFERRED TO IN SUBSECTION (b) ABOVE IN
ANY FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK CITY BY SERVICE OF
PROCESS UPON THE AGENT OF SUCH PRINCIPAL OBLIGOR, AS THE CASE MAY BE, FOR
SERVICE OF PROCESS IN SUCH JURISDICTION APPOINTED AS PROVIDED IN SUBSECTION (c)
ABOVE; PROVIDED  THAT, TO
THE EXTENT LAWFUL AND POSSIBLE, WRITTEN NOTICE OF SAID SERVICE UPON SUCH AGENT
SHALL BE MAILED BY REGISTERED AIRMAIL, POSTAGE PREPAID, RETURN RECEIPT
REQUESTED, TO SUCH PRINCIPAL OBLIGOR AT ITS ADDRESS SPECIFIED ON THE SIGNATURE
PAGES HEREOF OR TO ANY OTHER ADDRESS OF WHICH SUCH OBLIGOR SHALL HAVE GIVEN
WRITTEN NOTICE TO THE PAYING AGENT. 
EACH PRINCIPAL OBLIGOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ALL CLAIM OF ERROR BY REASON OF ANY SUCH SERVICE AND AGREES
THAT SUCH SERVICE SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS
UPON SUCH PRINCIPAL OBLIGOR IN ANY SUCH SUIT, ACTION OR PROCEEDING AND SHALL,
TO THE FULLEST EXTENT PERMITTED BY LAW, BE TAKEN AND HELD TO BE VALID AND
PERSONAL SERVICE UPON AND PERSONAL DELIVERY TO SUCH PRINCIPAL OBLIGOR.


 


(e)           NOTHING
IN THIS SECTION SHALL AFFECT THE RIGHT OF THE PAYING AGENT OR ANY LENDER
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR LIMIT THE RIGHT OF THE
PAYING AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST EITHER PRINCIPAL
OBLIGOR IN THE COURTS OF ANY JURISDICTION OR JURISDICTIONS.


 


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10.16      Judgment Currency.   If, under any applicable law and whether pursuant to a judgment
being made or registered against either Principal Obligor or for any other
reason, any payment under or in connection with this Agreement, is made or
satisfied in a currency (the “Other Currency”) other than that in which
the relevant payment is due (the “Required Currency”) then, to the
extent that the payment (when converted into the Required Currency at the rate
of exchange on the date of payment or, if it is not practicable for the party
entitled thereto (the “Payee”) to purchase the Required Currency with
the Other Currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for it to do so) actually received by the Payee
falls short of the amount due under the terms of this Agreement, such Principal
Obligor shall, to the extent permitted by law, as a separate and independent
obligation, indemnify and hold harmless the Payee against the amount of such
shortfall. For the purpose of this Section, “rate of exchange” means the rate
at which the Payee is able on the relevant date to purchase the Required
Currency with the Other Currency and shall take into account any premium and
other costs of exchange.


 


10.17      Waiver of Right to Trial by Jury.   EACH PARTY TO THIS AGREEMENT HEREBY
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER ANY FINANCING DOCUMENT OR IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF
THEM WITH RESPECT TO ANY FINANCING DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.


 


10.18      Waiver of Immunities


 


TO THE EXTENT PERMITTED BY APPLICABLE LAW, IF EITHER PRINCIPAL OBLIGOR
HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY (SOVEREIGN OR OTHERWISE) FROM ANY
LEGAL ACTION, SUIT OR PROCEEDING, FROM JURISDICTION OF ANY COURT OR FROM
SET-OFF OR ANY LEGAL PROCESS (WHETHER SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF JUDGMENT, EXECUTION OF JUDGMENT OR
OTHERWISE) WITH RESPECT TO ITSELF OR ANY OF ITS PROPERTY, SUCH PRINCIPAL
OBLIGOR HEREBY IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
FINANCING DOCUMENTS TO WHICH IT IS A PARTY. 
EACH PRINCIPAL OBLIGOR AGREES THAT THE WAIVERS SET FORTH ABOVE SHALL BE
TO THE FULLEST EXTENT PERMITTED UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT OF
1976 OF THE UNITED STATES OF AMERICA AND ARE INTENDED TO BE IRREVOCABLE AND NOT
SUBJECT TO WITHDRAWAL FOR PURPOSES OF SUCH ACT.


 


80

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first above written.


 


 


	
   

  	
  TYCO INTERNATIONAL GROUP S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin
  O'Kelly-Lynch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kevin
  O'Kelly-Lynch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TYCO INTERNATIONAL LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David J.
  FitzPatrick

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  David J.
  FitzPatrick

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Executive
  Vice President and 

  Chief
  Financial Officer

  	
   

  
							



 


S-1

















 


	
   

  	
  BANK
  OF AMERICA, N.A., as

  Paying Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John
  Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
					



 


S-2

















 


	
   

  	
  BANK
  OF AMERICA, N.A., as a Lender

  and initial L/C Issuer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John
  Pocalyko

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
					



 


S-3

















 


	
   

  	
  CITICORP NORTH AMERICA, INC., as
  a

  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William Martens III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William
  Martens III

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
					



 


S-4

















 


	
   

  	
  ABN AMRO BANK N.V.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Eric Oppenheimer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Eric
  Oppenheimer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Todd Miller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Todd
  Miller

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Assistant
  Vice President

  	
   

  
					



 


S-5

















 


	
   

  	
  AUSTRALIA AND NEW ZEALAND

    BANKING GROUP LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Wade

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John
  Wade

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-6

















 


	
   

  	
  BANCO BILBAO VIZCAYA
  ARGENTARIA S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jay Levit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jay
  Levit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Salustiano Machado

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Salustiano
  Machado

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


 


S-7

















 


	
   

  	
  THE BANK OF N.T. BUTTERFIELD
  & SON LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  J.W. Raynde

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  J.W.
  Raynde

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Curtis Sallantyne

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Curtis
  Sallantyne

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-8

















 


	
   

  	
  THE BANK OF NOVA SCOTIA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  William E. Zarrett

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William
  E. Zarrett

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
					



 


S-9

















 


	
   

  	
  BANK ONE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Grover A. Fitch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Grover
  A. Fitch

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
					



 


S-10

















 


	
   

  	
  BARCLAYS BANK PLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John Giannone

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  John
  Giannone

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-11

















 


	
   

  	
  BAYERISCHE HYPO-UND
  VEREINSBANK AG, New York Branch

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marianne Weinzinger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Marianne
  Weinzinger

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Patricia Grieve

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Patricia
  Grieve

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-12

















 


	
   

  	
  BAYERISCHE LANDESBANK NEW YORK

  BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Oliver Hildenbrand

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Oliver
  Hildenbrand

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James H. Boyle

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  James
  H. Boyle

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-13

















 


	
   

  	
  BEAR STEARNS CORPORATE
  LENDING INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lawrence Alletto

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Lawrence
  Alletto

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-14

















 


	
   

  	
  BNP PARIBAS

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Pace

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Richard
  Pace

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Nanette Baudon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Nanette
  Baudon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-15

















 


	
   

  	
  COMMERZBANK AG, New York and
  Grand Cayman Branches

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Taylor, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  /s/
  Robert S. Taylor, Jr.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew P. Lusk

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Andrew
  P. Lusk

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-16

















 


	
   

  	
  CREDIT SUISSE FIRST BOSTON,

   
  acting through its Cayman Islands Branch

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Peter Chauvin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Peter
  Chauvin

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alain Daoust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Alain
  Daoust

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-17

















 


	
   

  	
  DEUTSCHE BANK AG
  NEW YORK BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Iain Stewart

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Iain
  Stewart

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Patrick Dutilly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Patrick
  Dutilly

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-18

















 


	
   

  	
  FLEET NATIONAL BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Marwan Isbaih

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Marwan
  Isbaih

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-19

















 


	
   

  	
  GOLDMAN SACHS CREDIT PARTNERS L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  W.W. Archer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  William
  W. Archer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  	
   

  
					



 


S-20

















 


	
   

  	
  THE GOVERNOR AND COMPANY
  OF THE BANK OF IRELAND

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tony McMahon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Tony
  McMahon

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate
  Director

  	
   

  
					



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tara Lochran

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Tara
  Lochran

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Executive

  	
   

  
					



 


S-21

















 


	
   

  	
  ING BELGIUM SA/NV

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Yves Adler

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Yves
  Adler

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Maurissen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert
  Maurissen

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-22

















 


	
   

  	
  JPMORGAN CHASE BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert I. Sacks

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert
  I. Sacks

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing
  Director

  	
   

  
					



 


S-23

















 


	
   

  	
  LEHMAN COMMERCIAL PAPER INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jane E. Gillard

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jane
  E. Gillard

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Authorized
  Signatory

  	
   

  
					



 


S-24

















 


	
   

  	
  MANUFACTURERS AND TRADERS
  TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joshua C. Becker

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Joshua
  C. Becker

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Officer

  	
   

  
					



 


S-25

















 


	
   

  	
  MELLON BANK, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Daniel J. Lenckos

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Daniel
  J. Lenckos

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  First
  Vice President

  	
   

  
					



 


S-26

















 


	
   

  	
  MERRILL LYNCH BANK USA

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Louis Alder

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Louis
  Alder

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-27


 

















 


	
   

  	
  MIZUHO CORPORATE BANK, LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert Gallagher

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Robert
  Gallagher

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-28

















 


	
   

  	
  MORGAN STANLEY BANK

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jaap L. Tonckens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jaap
  L. Tonckens

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-29

















 


	
   

  	
  THE NORTHERN TRUST COMPANY

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ashish S. Bhagwat

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Ashish
  S. Bhagwat

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-30

















 


	
   

  	
  THE ROYAL BANK OF SCOTLAND PLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Frank Guerra

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Frank
  Guerra

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  	
   

  
					



 


S-31

















 


	
   

  	
  SAN PAOLO IMI S.p.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Renato Carducci

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Renato
  Carducci

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  General
  Manager

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Luna Sacchi

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Luna
  Sacchi

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice
  President

  	
   

  
					



 


S-32

















 


	
   

  	
  SOCIETE GENERALE

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ambrish D. Thanawala

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Ambrish
  D. Thanawala

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director

  	
   

  
					



 


S-33

















 


	
   

  	
  UBS LOAN FINANCE LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Barbara Ezell-McMichael

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Barbara
  Ezelle-McMichael

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate
  Director

  	
   

  
					



 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Josella Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Josella
  Fernandes

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Associate
  Director

  	
   

  
					



 


S-34

















 


	
   

  	
  WESTPAC BANKING CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Andrew Ramsay

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Andrew
  Ramsay

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Head
  of Relationship Management

  	
   

  
					



 


S-35

















 


SCHEDULE 1


 


PRICING GRID


 


 


	
  Rating Level

  Period

  	
   

  	
  Applicable Facility

  Fee Rate

  	
   

  	
  Applicable Margin

  	
   

  	
  L/C Margin-

  Financial L/C

  	
   

  	
  L/C Margin-

  Performance L/C

  
	
  1

  	
   

  	
  9.0 bps

  	
   

  	
  41.0 bps

  	
   

  	
  41.0 bps

  	
   

  	
  31.0 bps

  
	
  2

  	
   

  	
  11.0 bps

  	
   

  	
  64.0 bps

  	
   

  	
  64.0 bps

  	
   

  	
  39.0 bps

  
	
  3

  	
   

  	
  15.0 bps

  	
   

  	
  72.5 bps

  	
   

  	
  72.5 bps

  	
   

  	
  47.5 bps

  
	
  4

  	
   

  	
  17.5 bps

  	
   

  	
  82.5 bps

  	
   

  	
  82.5 bps

  	
   

  	
  57.5 bps

  
	
  5

  	
   

  	
  25.0 bps

  	
   

  	
  100.0 bps

  	
   

  	
  100.0 bps

  	
   

  	
  75.0 bps

  
	
  6

  	
   

  	
  50.0 bps

  	
   

  	
  125.0 bps

  	
   

  	
  125.0 bps

  	
   

  	
  87.5 bps

  



 


1

















 


SCHEDULE 2.01


 


COMMITMENTS

AND COMMITMENT PERCENTAGES




	
  Lender

  	
   

  	
  Commitment

  	
   

  	
  Commitment Percentage

  	
   

  
	
  Bank of America, N.A.

  	
   

  	
  $

  	
  103,500,000

  	
   

  	
  6.900000000

  	
  %

  
	
  Citicorp North America, Inc.

  	
   

  	
  $

  	
  103,500,000

  	
   

  	
  6.900000000

  	
  %

  
	
  ABN AMRO Bank N.V.

  	
   

  	
  $

  	
  81,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Deutsche Bank AG New York Branch

  	
   

  	
  $

  	
  81,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Goldman Sachs Credit Partners L.P.

  	
   

  	
  $

  	
  81,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  JPMorgan Chase Bank

  	
   

  	
  $

  	
  81,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Morgan Stanley Bank

  	
   

  	
  $

  	
  81,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  UBS Loan Finance LLC

  	
   

  	
  $

  	
  81,000,000

  	
   

  	
  5.400000000

  	
  %

  
	
  Barclays Bank plc

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  BNP Paribas

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  Credit Suisse First Boston, acting through its
  Cayman Islands Branch

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  The Royal Bank of Scotland plc

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  4.000000000

  	
  %

  
	
  Lehman Commercial Paper Inc.

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Mellon Bank, N.A.

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Merrill Lynch Bank USA

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  The Bank of Nova Scotia

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Societe Generale

  	
   

  	
  $

  	
  45,000,000

  	
   

  	
  3.000000000

  	
  %

  
	
  Banco Bilbao Vizcaya Argentaria S.A.

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  2.000000000

  	
  %

  
	
  Commerzbank AG, New York and Grand Cayman Branches

  	
   

  	
  $

  	
  30,000,000

  	
   

  	
  2.000000000

  	
  %

  
	
  Bank One

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Bayerische Hypo-Und Vereinsbank A.G., New York
  Branch

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Bayerische Landesbank New York Branch

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Bear Stearns Corporate Lending Inc.

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Fleet National Bank

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  Manufacturers and Traders Trust Company

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  San Paolo IMI S.p.A.

  	
   

  	
  $

  	
  24,000,000

  	
   

  	
  1.600000000

  	
  %

  
	
  The Northern Trust Company

  	
   

  	
  $

  	
  21,000,000

  	
   

  	
  1.400000000

  	
  %

  
	
  The Governor and Company of the Bank of Ireland

  	
   

  	
  $

  	
  18,000,000

  	
   

  	
  1.200000000

  	
  %

  
	
  Australia and New Zealand Banking Group Limited

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  The Bank of N.T. Butterfield & Son Ltd.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  ING Belgium NV/SA

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  Mizuho Corporate Bank, Ltd.

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  Westpac Institutional Bank

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  1.000000000

  	
  %

  
	
  Total

  	
   

  	
  $

  	
  1,500,000,000

  	
   

  	
  100.000000000

  	
  %

  



 


1

















 


SCHEDULE 5.05


 


LITIGATION


 


None.


 


1

















 


SCHEDULE 10.02


 


PAYING
AGENT’S OFFICE,

CERTAIN ADDRESSES FOR NOTICES


 


Notice
to


Kevin O’Kelly-Lynch


Tyco International Group S.A.


17, bd Grande-Duchesse Charlotte


L-1331 Luxembourg


Fax: +352 46-43-50


Tel: +352  46-43-40-352


email: KOKellyLynch@TYCO.COM


 


with CC: to


Judith A. Reinsdorf


Tyco International (US) Inc.


9 Roszel Rd.


Princeton NJ 08540


Fax: (609) 720-4320


Tel: (609) 720-4340


email: jreinsdorf@TYCO.COM


 


Website address:  www.tyco.com


 


PAYING AGENT:


 


Paying
Agent’s Office  

(for payments and Requests for Credit Extensions):


Bank of America, N.A.


Street Address  101 North Tryon Street


Mail Code:  NC1-001-15-04

City, State ZIP Code Charlotte, NC 
28255


Attention:  Laura Schultz


Telephone:  704-388-6484


Facsimile:   704-409-0008


Electronic Mail: 
laura.a.schultz@bankofamerica.com


Account No.:  1366212250600


Ref: 
    Tyco
International                            


ABA#  026009593


 


Other
Notices as Paying Agent:


Bank of America, N.A.

Agency Management

101 North Tryon Street, 15th Floor


 


1

















 


Mail Code:  NC1-001-15-02

Charlotte, NC  28255


Attention:  Kimberly Williams


Telephone:  704-387-5451


Facsimile:  704-409-0650


Electronic Mail:
kim.williams@bankofamerica.com


 


L/C
ISSUER:


 


Bank of America, N.A.

Trade Operations-Los Angeles #22621

333 S. Beaudry Avenue, 19th Floor

Mail Code:  CA9-703-19-23

Los Angeles, CA 90017-1466


Attention:              Sandra
Leon

Vice President


Telephone:  213.345.5231


Facsimile:  213.345.6694


Electronic Mail:  Sandra.Leon@bankofamerica.com


 


2

















 


EXHIBIT A


 


FORM
OF LOAN NOTICE


 


Date: 
                      ,
          


 


To:          Bank of America, N.A.,
as Paying Agent


 


Ladies and Gentlemen:


 


Reference is made to that certain Credit Agreement, dated as of
December 22, 2003 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the “Agreement;” the
terms defined therein being used herein as therein defined), among Tyco International
Group S.A., a Luxembourg company (the “Borrower”), Tyco International
Ltd., a Bermuda company (the “Parent”), the Lenders from time to time
party thereto, and Bank of America, N.A., as Paying Agent and initial L/C
Issuer.


 


	
  The undersigned hereby requests (select
  one):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  o  A
  Borrowing of Loans

  	
   

  	
  o  A conversion or continuation of Loans

  



 


1.             On                                                                                          (a
Business Day).


 


2.             In the amount of
$                      .


 


3.             Comprised of
                                               .


[Type of Loan
requested]


 


4.             For Eurodollar Rate
Loans:  with an Interest Period of
             
months.


 


[The Borrowing
requested herein complies with the proviso to the first sentence of Section 2.01
of the Agreement.]


 


	
   

  	
  TYCO
  INTERNATIONAL GROUP S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


 


A - 1

















 


EXHIBIT B


 


FORM
OF NOTE


 


	
   

  	
  New York, New York

  
	
   

  	
                           ,
  2003

  



 


FOR VALUE RECEIVED,
the undersigned (the “Borrower”), hereby promises to pay to
                                          
or registered assigns (the “Lender”), in accordance with the provisions
of the Agreement (as hereinafter defined), the principal amount of each Loan
from time to time made by the Lender to the Borrower under that certain Credit
Agreement, dated as of December 22, 2003 (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the “Agreement;”
the terms defined therein being used herein as therein defined), among the
Borrower, Tyco International Ltd., the Lenders from time to time party thereto,
and Bank of America, N.A., as Paying Agent and initial L/C Issuer.


 


The Borrower
promises to pay interest on the unpaid principal amount of each Loan from the
date of such Loan until such principal amount is paid in full, at such interest
rates and at such times as provided in the Agreement.  All payments of principal and interest shall be made to the
Paying Agent for the account of the Lender in Dollars in immediately available
funds at the Paying Agent’s Office.  If
any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.


 


This Note is
one of the Notes referred to in the Agreement, is entitled to the benefits
thereof and may be prepaid in whole or in part subject to the terms and
conditions provided therein.  This Note
is also entitled to the benefits of the Parent Guaranty and each Subsidiary
Guaranty.  Upon the occurrence and continuation
of one or more of the Events of Default specified in the Agreement, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement.  Loans made by the Lender shall be evidenced
by one or more loan accounts or records maintained by the Lender in the
ordinary course of business. The Lender may also attach schedules to this Note
and endorse thereon the date, amount and maturity of its Loans and payments
with respect thereto.


 


Except as
otherwise provided in the Agreement, the Borrower, for itself, its successors
and assigns, hereby waives diligence, presentment, protest and demand and
notice of protest, demand, dishonor and non-payment of this Note.


 


B - 1

















 


THIS NOTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


	
   

  	
  TYCO INTERNATIONAL GROUP S.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B - 2

















 


LOANS AND PAYMENTS WITH RESPECT THERETO


 


	
  Date

  	
   

  	
  Type of

  Loan Made

  	
   

  	
  Amount of

  Loan Made

  	
   

  	
  End of

  Interest

  Period

  	
   

  	
  Amount of

  Principal or

  Interest

  Paid This

  Date

  	
   

  	
  Outstanding Principal

  Balance

  This Date

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


B - 3

















 


EXHIBIT C


 


ASSIGNMENT
AND ASSUMPTION


 


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


 


For an agreed
consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the
Assignor, subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the Paying Agent
as contemplated below (i) all of the Assignor’s rights and obligations as a
Lender under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
the Assignor under the respective facilities identified below (including,
without limitation, Letters of Credit and Guarantees included in such
facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of the Assignor
(in its capacity as a Lender) against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above being
referred to herein collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


1.             Assignor:                                                                         


 


2.             Assignee:                                                                         
[and is an

Affiliate/Approved Fund of [identify Lender](1)]


 


3.             Borrower(s):                                                                     


 


4.             Paying Agent: Bank of America, N.A, as the
Paying Agent under the

Credit Agreement


 


5.             Credit
Agreement: The Credit Agreement, dated as of December 22, 2003 among Tyco
International Group S.A., as Borrower, Tyco International Ltd., as Parent
Guarantor, the Lenders parties thereto, and Bank of America, N.A., as Paying
Agent


 












(1) Select as
applicable.


 


C - 1

















 


6.             Assigned Interest:


 


	
  Aggregate

  Amount of

  Commitments

  For all Lenders*

  	
   

  	
  Amount of

  Commitment

  Assigned*

  	
   

  	
  Percentage

  Assigned of

  Commitment

  	
   

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  
	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  



 


[7.            Trade
Date:                                              ](2)


 


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


 


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


 


	
   

  	
  ASSIGNOR

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  	
   

  
	
   

  	
  [NAME OF
  ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  [Consented
  to and](3) Accepted:

  	
   

  
	
   

  	
   

  
	
  [NAME OF
  PAYING AGENT], as

  	
   

  
	
  Paying Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  
	
   

  	
   

  
	
  [Consented
  to:](4)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  
								



 












(2) To be
completed if the Assignor and the Assignee intend that the minimum assignment
amount is to be determined as of the Trade Date.


(3) To be
added only if the consent of the Paying Agent is required by the terms of the
Credit Agreement.


(4) To be
added only if the consent of the Borrower and/or other parties (e.g.  L/C Issuer) is required by the terms of the
Credit Agreement.


 


C -2

















 


ANNEX 1 TO
ASSIGNMENT AND ASSUMPTION


 


CREDIT
AGREEMENT DATED AS OF DECEMBER 22, 2003 AMONG TYCO INTERNATIONAL GROUP
S.A., AS BORROWER, TYCO INTERNATIONAL LTD., AS PARENT GUARANTOR, THE LENDERS
PARTIES THERETO, AND BANK OF AMERICA, N.A., AS PAYING AGENT


 


STANDARD TERMS AND CONDITIONS FOR


 


ASSIGNMENT AND ASSUMPTION


 


1.                 Representations and Warranties.


 


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


 


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


 


2.                 Payments.  From and after the Effective Date, the
Paying Agent shall make all payments in respect of the Assigned Interest
(including payments of principal, interest, fees and other amounts) to the
Assignee whether such amounts have accrued prior to or on or after the
Effective Date. The Assignor and the Assignee shall make all appropriate
adjustments in


 


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payments by the Paying Agent
for periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.


 


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


 


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