Exhibit 4(ii) 


	
      Execution Version
    











Published CUSIP Number: 69643DAE9


CREDIT AGREEMENT 

Dated as of April 11, 2013 

among 

PALL CORPORATION, 

as the Borrower, 

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line
Lender and an L/C Issuer, 

JPMORGAN CHASE BANK, N.A.,

as Syndication Agent and an L/C Issuer,


and 

The Other Lenders Party Hereto


WELLS FARGO BANK, NATIONAL
ASSOCIATION, 
THE BANK OF TOKYO MITSUBISHI UFJ, LTD., 
HSBC BANK USA,
NATIONAL ASSOCIATION, 
and 

SUMITOMO MITSUI BANKING
CORPORATION, 
as Co-Documentation Agents


BANK OF AMERICA MERRILL LYNCH

and 
J.P. MORGAN SECURITIES LLC, 
as
Joint Lead Arrangers and Joint Book Managers 













TABLE OF CONTENTS 

				Page
	ARTICLE I.		      
      DEFINITIONS AND ACCOUNTING TERMS	1
	1.01	       	Defined Terms	1
	1.02		Other Interpretive Provisions	24
	1.03		Accounting Terms	25
	1.04		Rounding	26
	1.05		Exchange Rates; Currency Equivalents	26
	1.06		Additional Alternative Currencies	26
	1.07		Change of Currency	27
	1.08		Times of Day	27
	1.09		Letter of Credit Amounts	27
	ARTICLE II.		       THE
      COMMITMENTS AND CREDIT EXTENSIONS	27
	2.01		Committed Loans	27
	2.02		Borrowings, Conversions and Continuations of
      Committed Loans	28
	2.03		Letters of Credit	30
	2.04		Swing Line Loans	39
	2.05		Prepayments	41
	2.06		Termination or Reduction of
      Commitments	42
	2.07		Repayment of Loans	42
	2.08	 	Interest	43
	2.09		Fees	43
	2.10		Computation of Interest and Fees	44
	2.11		Evidence of Debt	44
	2.12		Payments Generally; Administrative Agent’s
      Clawback	44
	2.13		Sharing of Payments by Lenders	46
	2.14		Cash Collateral	47
	2.15		Defaulting Lenders	48
	ARTICLE III.		       TAXES,
      YIELD PROTECTION AND ILLEGALITY	50
	3.01		Taxes	50
	3.02		Illegality	54
	3.03		Inability to Determine Rates	55
	3.04		Increased Costs; Reserves on Eurocurrency
      Rate Loans	55
	3.05		Compensation for Losses	57



-i- 







TABLE OF CONTENTS 
(continued) 

				Page
	3.06		Mitigation Obligations; Replacement of
      Lenders	58
	3.07	       	Survival	59
	ARTICLE IV.		      
      CONDITIONS PRECEDENT TO CREDIT EXTENSIONS	59
	4.01		Conditions of Initial Credit Extension	59
	4.02		Conditions to all Credit
Extensions	60
	ARTICLE V.		       REPRESENTATIONS AND
      WARRANTIES	61
	5.01		Existence, Qualification and Power;
      Compliance with Laws	61
	5.02		Authorization; No Contravention	61
	5.03		Governmental Authorization; Other
      Consents	61
	5.04		Binding Effect	61
	5.05		Financial Statements; No Material Adverse
      Effect	62
	5.06		Litigation	62
	5.07		No Default	62
	5.08		Ownership of Property; Liens	62
	5.09		Environmental Compliance	63
	5.10		Insurance	63
	5.11	 	Taxes	63
	5.12		ERISA Compliance	63
	5.13		Subsidiaries; Equity Interests	63
	5.14		Margin Regulations; Investment Company Act	63
	5.15		Disclosure	64
	5.16		Permits and Licenses, Etc.	64
	5.17		Labor Disputes and Acts of God	64
	5.18		Sanctions	64
	5.19		Cash Pool Arrangements	64
	ARTICLE VI.		       AFFIRMATIVE
      COVENANTS	65
	6.01		Financial Statements	65
	6.02		Certificates; Other Information	65
	6.03		Notices	67
	6.04		Payment of Obligations	67
	6.05		Preservation of Existence, Etc.	68
	6.06		Maintenance of Properties	68



-ii- 







TABLE OF CONTENTS 
(continued) 

				Page
	6.07	      
    	Maintenance of
      Insurance	68
	6.08		Compliance with Laws	68
	6.09		Books and
Records	68
	6.10		Inspection Rights	68
	6.11		Use of Proceeds	69
	6.12		Cash Pool Arrangements	69
	ARTICLE VII.		       NEGATIVE
    COVENANTS	69
	7.01		Liens	69
	7.02		Investments	71
	7.03		Priority Indebtedness	72
	7.04		Fundamental
    Changes	72
	7.05		Dispositions	72
	7.06		Restricted
    Payments	73
	7.07		Change in Nature of Business	73
	7.08		Transactions with
      Affiliates	73
	7.09		Use of Proceeds	73
	7.10		Consolidated Leverage
      Ratio	73
	7.11	 	Hazardous Materials	73
	7.12		Sanctions	73
	ARTICLE VIII.		       EVENTS
      OF DEFAULT AND REMEDIES	74
	8.01		Events of
Default	74
	8.02		Remedies Upon Event of Default	75
	8.03		Application of
    Funds	76
	ARTICLE IX.		      
      ADMINISTRATIVE AGENT	77
	9.01		Appointment and
      Authority	77
	9.02		Rights as a Lender	77
	9.03		Exculpatory
      Provisions	77
	9.04		Reliance by Administrative Agent	78
	9.05		Delegation of
    Duties	78
	9.06		Resignation of Administrative
Agent	79
	9.07		Non-Reliance on
      Administrative Agent and Other Lenders	80
	9.08		No Other Duties, Etc.	80



-iii- 







TABLE OF CONTENTS 
(continued) 

				Page
	9.09		Administrative Agent May File Proofs of
      Claim	80
	ARTICLE X.	       	      
    MISCELLANEOUS	81
	10.01		Amendments, Etc.	81
	10.02		Notices; Effectiveness; Electronic
Communication	82
	10.03		No Waiver; Cumulative Remedies;
      Enforcement	84
	10.04		Expenses; Indemnity; Damage Waiver	84
	10.05		Payments Set Aside	86
	10.06		Successors and Assigns	87
	10.07		Treatment of Certain Information;
      Confidentiality	91
	10.08		Right of Setoff	92
	10.09		Interest Rate Limitation	92
	10.10		Counterparts; Integration; Effectiveness	92
	10.11		Survival of Representations and
      Warranties	93
	10.12		Severability	93
	10.13		Replacement of Lenders	93
	10.14		Governing Law; Jurisdiction; Etc.	94
	10.15	 	Waiver of Jury Trial	95
	10.16		No Advisory or Fiduciary Responsibility	95
	10.17		Electronic Execution of Assignments and
      Certain Other Documents	95
	10.18		USA PATRIOT Act	96
	10.19		Judgment Currency	96
	SIGNATURES		S-1	



-iv- 







	SCHEDULES		
		 
	             
      	1.01	       	Mandatory Cost Formulae
		2.01		Commitments and Applicable
    Percentages
		2.03		Existing Letters of Credit
		5.13		Subsidiaries
		5.19		Cash Pool Arrangements
		7.01		Existing Liens
		7.02		Other Investments
		7.03		Priority Indebtedness
		10.02		Administrative Agent’s Office; Certain
      Addresses for Notices
		 
	EXHIBITS		
		 
		Form
      of	 	 
		 
		A		Committed Loan Notice
		B		Swing Line Loan Notice
		C		Note
		D		Compliance Certificate
		E		Assignment and Assumption
		F		U.S. Tax Compliance
  Certificates



-v- 







CREDIT AGREEMENT 

      
This CREDIT AGREEMENT (“Agreement”) is entered into as of
April 11, 2013, among Pall Corporation, a New York corporation (the “Borrower”), each lender
from time to time party hereto (collectively, the “Lenders” and individually, a
“Lender”),
BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer,
and JPMORGAN CHASE BANK, N.A., as an L/C Issuer. 

      
The Borrower has requested that the Lenders provide a revolving credit facility,
and the Lenders are willing to do so on 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:


      
“Administrative Agent” means Bank of America in its capacity as administrative
agent under any of the Loan Documents, or any successor administrative agent.


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

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

      
“Affiliate”
means, with respect to a specified Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is Controlled by or
is under common Control with the Person specified. 

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

      
“Agreement”
means this Credit Agreement. 

      
“Alternative Currency” means each of Euro, Sterling, Yen, Swiss Francs and each
other currency (other than Dollars) that is approved in accordance with
Section 1.06. 

      
“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 Administrative Agent or the
applicable 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. 

      
“Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate
Commitments and $200,000,000. The Alternative Currency Sublimit is part of, and
not in addition to, the Aggregate Commitments. 

1 







      
“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments
represented by such Lender’s Commitment at such time, subject to adjustment as
provided in Section 2.15. If the commitment of each Lender to make Loans and the
obligation of each L/C Issuer to make L/C Credit Extensions have been terminated
pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the
Applicable Percentage of each Lender shall be determined based on the Applicable
Percentage of such Lender most recently in effect, giving effect to any
subsequent assignments. The initial Applicable Percentage 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.


      
“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below: 


				Eurocurrency	
				Rate +	
	Pricing	Debt Ratings	Commitment	Letters of	Base
	Level	S&P/Moody’s	Fee	Credit	Rate +
	1	A/A2 or better	0.070%	0.875%	0.000%
	2	A-/A3	0.100%	1.000%	0.000%
	3	BBB+/Baa1	0.125%	1.125%	0.125%
	4	BBB/Baa2	0.175%	1.250%	0.250%
	5	BBB-/Baa3 or	0.225%	1.500%	0.500%
		worse			




      
“Debt Rating” means, as of any date of determination, the rating as determined by either
S&P or Moody’s (collectively, the “Debt
Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the respective
Debt Ratings issued by foregoing rating agencies differ by one level, then the
Pricing Level for the higher of such Debt Ratings shall apply (with the Debt
Rating for Pricing Level 1 being the highest and the Debt Rating for Pricing
Level 5 being the lowest); (b) if there is a split in Debt Ratings of more than
one level, then the Pricing Level that is one level lower than the Pricing Level
of the higher Debt Rating shall apply; (c) if the Borrower has only one Debt
Rating, the Pricing Level that is one level lower than that of such Debt Rating
shall apply; and (d) if the Borrower does not have any Debt Rating, Pricing
Level 5 shall apply. 

Initially, the Applicable Rate shall be
determined based upon the Debt Rating specified in the certificate delivered
pursuant to Section
4.01(a)(vii). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in the Debt Rating
shall be effective, in the case of an upgrade, during the period commencing on
the date of delivery by the Borrower to the Administrative Agent of notice
thereof pursuant to Section
6.03(e) and ending on the date immediately
preceding the effective date of the next such change and, in the case of a
downgrade, during the period commencing on the date of the public announcement
thereof and ending on the date immediately preceding the effective date of the
next such 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 Administrative Agent or the applicable 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. 

2 







      
“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. 

      
“Arrangers”
means MLPFS and J.P. Morgan Securities in their capacity as joint lead arrangers
and joint book managers. 

      
“Assignment and Assumption” means an assignment and assumption entered into by a Lender
and an Eligible Assignee (with the consent of any party whose consent is
required by Section 10.06(b)), and accepted by the Administrative Agent, in substantially
the form of Exhibit E or any other form (including electronic documentation
generated by MarkitClear or other electronic platform) approved by the
Administrative Agent. 

      
“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of
any Person, the capitalized amount thereof that would appear on a 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 of the
remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP if such
lease were accounted for as a capital lease. 

      
“Audited Financial Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended July 31, 2012, and the related
consolidated statements of income or operations, shareholders’ equity and cash
flows for such fiscal year of the Borrower and its Subsidiaries, including the
notes thereto. 

      
“Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate
Commitments pursuant to Section
2.06, and (c) the date of termination of the
commitment of each Lender to make Loans and of the obligation of each L/C Issuer
to make L/C Credit Extensions pursuant to Section 8.02. 

      
“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
highest of (a) the Federal Funds Rate plus 1/2 of 1%, (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,” and (c) the Eurocurrency Rate plus 1.00%. 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 prime 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 Committed Loan” means a Committed Loan that is a Base Rate Loan. 

      
“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate
Loans shall be denominated in Dollars. 

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

      
“Borrower Materials” has the meaning specified in Section
6.02. 

      
“Borrowing”
means a Committed Borrowing or a Swing Line Borrowing, as the context may
require. 

3 







      
“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 Administrative Agent’s Office with respect to
Obligations denominated in Dollars is located and: 

       (a)
if such day relates to any interest rate settings
as to a Eurocurrency Rate Loan denominated in Dollars, any fundings,
disbursements, settlements and payments in Dollars in respect of any such
Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means
any such day that is also a London Banking Day; 

       (b)
if such day relates to any interest rate settings
as to a Eurocurrency Rate Loan denominated in Euro, any fundings, disbursements,
settlements and payments in Euro in respect of any such Eurocurrency Rate Loan,
or any other dealings in Euro to be carried out pursuant to this Agreement in
respect of any such Eurocurrency Rate Loan, means a TARGET Day; 

       (c)
if such day relates to any interest rate settings
as to a Eurocurrency Rate Loan denominated in a currency other than Dollars or
Euro, means any such day on which dealings in deposits in the relevant currency
are conducted by and between banks in the London or other applicable offshore
interbank market for such currency; and 

       (d)
if such day relates to any fundings,
disbursements, settlements and payments in a currency other than Dollars or Euro
in respect of a Eurocurrency Rate Loan denominated in a currency other than
Dollars or Euro, or any other dealings in any currency other than Dollars or
Euro to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Rate Loan (other than any interest rate settings), means any such
day on which banks are open for foreign exchange business in the principal
financial center of the country of such currency. 

      
“Capital Lease Obligations” means that portion of any obligation of a Person as lessee
under a lease (or other similar arrangement) which at the time would be required
to be capitalized on the balance sheet of such lessee in accordance with GAAP
(but excluding any capitalized amounts in respect of an operating lease in
accordance with GAAP as in effect on the Closing Date that is recharacterized as
a capital lease as a result of a change in GAAP or interpretation thereof).


      
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of one or more of the L/C Issuers or the Lenders, as
collateral for L/C Obligations or obligations of the Lenders to fund
participations in respect of L/C Obligations, cash or deposit account balances
or, if the Administrative Agent and the applicable L/C Issuer shall agree in
their sole discretion, other credit support, in each case pursuant to
documentation in form and substance satisfactory to the Administrative Agent and
the applicable L/C Issuer. “Cash Collateral” shall have a meaning correlative to
the foregoing and shall include the proceeds of such cash collateral and other
credit support. 

      
“Cash Pool Arrangement” means a centralized cash pooling arrangement of any group of
Subsidiaries with a Cash Pool Bank under which such Subsidiaries make deposits
with and receive advances from such Cash Pool Bank in order to facilitate the
efficient deployment of cash of such Subsidiaries. 

      
“Cash Pool Availability” means, with respect to any Cash Pool Arrangement, the
aggregate amount of cash of Subsidiaries on deposit with the applicable Cash
Pool Bank under such Cash Pool Arrangement. 

4 







      
“Cash Pool Bank” means Bank Mendes Gans N.V. and each other bank that is a provider of
cash pooling arrangements to the Borrower, Pall Netherlands B.V. or any of the
other Subsidiaries; provided that each such other bank must have a long-term credit rating
of BBB or better by S&P and a long-term obligation rating of Baa2 or better
by Moody’s at the time such bank becomes a Cash Pool Bank. 

      
“Cash Pool Obligations” means, with respect to any Cash Pool Arrangement, the
aggregate outstanding amount of borrowings by the Subsidiaries under such Cash
Pool Arrangement. 

      
“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the
administration, interpretation, implementation or application thereof by any
Governmental Authority or (c) the making or issuance of any request, rule,
guideline or directive (whether or not having the force of law) by any
Governmental Authority; provided that notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives thereunder or
issued in connection therewith and (y) all requests, rules, guidelines or
directives promulgated by the Bank for International Settlements, the Basel
Committee on Banking Supervision (or any successor or similar authority) or the
United States or foreign regulatory authorities, in each case pursuant to Basel
III, shall in each case be deemed to be a “Change in Law”, regardless of the
date enacted, adopted or issued. 

      
“Change of Control” means an event or series of events by which: 

       (a)
any “person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a
person or group shall be deemed to have “beneficial ownership” of all securities
that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 30% or more of the equity securities of
the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such person or group has the right to
acquire pursuant to any option right);

       (b)
during any period of 12 consecutive months, a
majority of the members of the board of directors or other equivalent governing
body of the Borrower cease to be composed of individuals (i) who were members of
that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was
approved by individuals referred to in clause
(i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other equivalent
governing body was approved by individuals referred to in clauses (i) and
(ii) above
constituting at the time of such election or nomination at least a majority of
that board or equivalent governing body (excluding, in the case of both
clause
(ii) and
clause (iii), any individual whose initial nomination for, or assumption of office
as, a member of that board or equivalent governing body occurs as a result of an
actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a
solicitation for the election of one or more directors by or on behalf of the
board of directors); or 

       (c)
any Person or two or more Persons acting in
concert shall have acquired by contract or otherwise, a controlling influence
over the management or policies of the Borrower, or control over the equity
securities of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a fully-diluted basis
(and taking into account all such securities that such Person or group has the
right to acquire pursuant to any option right) representing 30% or more of the
combined voting power of such securities.

5 







      
“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied
or waived in accordance with Section
10.01. 

      
“Code”
means the Internal Revenue Code of 1986. 

      
“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section
2.01, (b) purchase participations in L/C
Obligations, and (c) purchase participations in Swing Line Loans, in an
aggregate principal amount at any one time outstanding not to exceed the Dollar
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. 

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

      
“Committed Loan” has the meaning specified in Section
2.01. 

      
“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a
conversion of Committed Loans from one Type to the other, or (c) a continuation
of Eurocurrency Rate Loans, pursuant to Section 2.02(a), which, if in writing,
shall be substantially in the form of Exhibit
A. 

      
“Compliance Certificate” means a certificate substantially in the form of
Exhibit D.


      
“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured
by net income (however denominated) or that are franchise Taxes or branch
profits Taxes. 

      
“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, an amount equal to Consolidated Net Income for such
period plus (a) the following to the extent deducted in calculating such
Consolidated Net Income (without duplication): (i) Consolidated Interest Charges
for such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period, (iii)
depreciation and amortization expense and (iv) other non-recurring expenses,
charges or losses of the Borrower and its Subsidiaries reducing such
Consolidated Net Income which do not represent a cash item in such period or any
future period and minus (b) the following to the extent included in calculating
such Consolidated Net Income (without duplication): (i) Federal, state, local
and foreign income tax credits of the Borrower and its Subsidiaries for such
period, (ii) interest income and (iii) all non-cash non-recurring items
increasing Consolidated Net Income for such period. 

6 







      
“Consolidated Funded
Indebtedness” means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct
obligations arising under letters of credit (including standby and commercial),
bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d)
all obligations in respect of the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of
business), (e) Attributable Indebtedness in respect of capital leases and
Synthetic Lease Obligations, (f) without duplication, all Guarantees with
respect to outstanding Indebtedness of the types specified in clauses (a) through
(e) above
of Persons other than the Borrower or any Subsidiary, and (g) all Indebtedness
of the types referred to in clauses
(a) through (f) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Borrower or a Subsidiary is a general partner or
joint venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary. Notwithstanding the foregoing, (i) Cash Pool
Obligations outstanding under any Cash Pool Arrangement shall be deemed to
constitute Consolidated Funded Indebtedness only to the extent of the excess
thereof over the Cash Pool Availability under such arrangement; (ii) contingent
obligations under undrawn letters of credit, bank guarantees, surety bonds and
similar instruments supporting trade payables, workers’ compensation and similar
obligations and other non-financial obligations (and any financial obligations
arising from the non-performance of such non-financial obligation until such
time as such financial obligation becomes due and payable), and any Guarantee of
any of the foregoing, shall not be deemed to constitute Consolidated Funded
Indebtedness; (iii) Indebtedness under arrangements for factoring of foreign
receivables shall be deemed to constitute Consolidated Funded Indebtedness only
to the extent the aggregate uncollected amount of the receivables transferred
pursuant to such arrangements at any time exceeds $50,000,000; and (iv) if the
net proceeds of the issuance and sale of any Refinancing Notes shall be
irrevocably deposited at the time of such issuance and sale with the trustee
under the New Notes Indenture for the sole purpose of repaying amounts due in
respect of the New Notes upon the maturity or redemption thereof, then that
portion of the New Notes not in excess of the amounts so deposited shall be
excluded in computing Consolidated Funded Indebtedness until the earlier of (i)
the release of such net proceeds by the trustee and (ii) the date that is 180
days after the date of such issuance and sale; provided further, that all Refinancing Notes
will, at all times after the issuance and sale thereof, be included in computing
Consolidated Funded Indebtedness. 

      
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the
period of the four fiscal quarters most recently ended; provided that Consolidated
EBITDA for this purpose shall be calculated on a Pro Forma Basis to give effect
to any acquisition (if the total consideration for such acquisition is more than
$100,000,000) or sale of a Subsidiary or operating division thereof or of the
Borrower. 

      
“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries for
that period. 

      
“Consolidated Net Tangible
Assets” means, at any time, Consolidated
Tangible Assets minus all current liabilities (excluding any thereof which are by
their terms extendible or renewable at the option of the obligor thereon to a
time more than twelve months after the time as of which the amount thereof is
being computed and excluding deferred income taxes) of the Borrower and its
Subsidiaries, all as set forth in the most recent consolidated balance sheet of
the Borrower and its Subsidiaries delivered pursuant to Section 6.01 (or, prior to
any such delivery, referred to in Section
5.05) as of such date of determination,
determined on a consolidated basis in accordance with GAAP.

      
“Consolidated Tangible Assets” means, at any time, the aggregate amount of assets (less
applicable accumulated depreciation, depletion and amortization and other
reserves and other properly deductible items) of the Borrower and its
Subsidiaries minus all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other intangible assets of the Borrower and its
Subsidiaries, all as set forth in the most recent consolidated balance sheet of
the Borrower and its Subsidiaries delivered pursuant to Section 6.01 (or, prior to
any such delivery, referred to in Section
5.05) as of such date of determination,
determined on a consolidated basis in accordance with GAAP.

7 







      
“Contractual Obligation” means, as to any Person, any provision of any security
issued by such Person or of any agreement, instrument or other undertaking to
which such Person is a party or by which it or any of its property is bound.


      
“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. “Controlling” and
“Controlled” have meanings correlative thereto. 

      
“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit
Extension. 

      
“Debt Rating” has the meaning specified in the definition of “Applicable Rate.”


      
“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 United States or other applicable
jurisdictions from time to time in effect. 

      
“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 be an Event of
Default. 

      
“Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable
Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum;
provided,
however,
that with respect to a Eurocurrency Rate Loan, the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Rate and any
Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, and (b)
when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate plus
2% per annum. 

      
“Defaulting Lender” means, subject to Section
2.15(b), any Lender that (a) has failed to
(i) fund all or any portion of its Loans within two Business Days of the date
such Loans were required to be funded hereunder unless such Lender notifies the
Administrative Agent and the Borrower in writing that such failure is the result
of such Lender’s determination that one or more conditions precedent to funding
(each of which conditions precedent, together with any applicable default, shall
be specifically identified in such writing) has not been satisfied, or (ii) pay
to the Administrative Agent, each L/C Issuer, the Swing Line Lender or any other
Lender any other amount required to be paid by it hereunder (including in
respect of its participation in Letters of Credit or Swing Line Loans) within
two Business Days of the date when due, (b) has notified the Borrower, the
Administrative Agent, any L/C Issuer or the Swing Line Lender in writing that it
does not intend to comply with its funding obligations hereunder, or has made a
public statement to that effect (unless such writing or public statement relates
to such Lender’s obligation to fund a Loan hereunder and states that such
position is based on such Lender’s determination that a condition precedent to
funding (which condition precedent, together with any applicable default, shall
be specifically identified in such writing or public statement) cannot be
satisfied), (c) has failed, within three Business Days after written request by
the Administrative Agent or the Borrower, to confirm in writing to the
Administrative Agent and the Borrower that it will comply with its prospective
funding obligations hereunder (provided that such Lender shall cease
to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written
confirmation by the Administrative Agent and the Borrower), or (d) has, or has a
direct or indirect parent company that has, (i) become the subject of a
proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver,
custodian, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its
business or assets, including the Federal Deposit Insurance Corporation or any
other state or federal regulatory authority acting in such a capacity;
provided
that a Lender shall not be a Defaulting Lender solely by
virtue of (x) the ownership or acquisition of any Equity Interest in that Lender
or any direct or indirect parent company thereof by a Governmental Authority or
(y) in the case of a solvent Lender, the precautionary appointment of an
administrator, provisional liquidator, conservator, receiver, trustee, guardian,
custodian or other similar official by a Governmental Authority or
instrumentality thereof (including a supervisory authority or regulator) under
or based on the law of the country where such Lender is subject to home
jurisdiction supervision if applicable law requires that such appointment not be
publicly disclosed, in any such case where such action does not result in or
provide such Lender with immunity from the jurisdiction of courts within the
United States or from the enforcement of judgments or writs of attachment on its
assets or permit such Lender (or such Governmental Authority or instrumentality)
to reject, repudiate, disavow or disaffirm any contracts or agreements made with
such Lender. Any determination by the Administrative Agent that a Lender is a
Defaulting Lender under any one or more of clauses (a) through (d) above, and of the
effective date of such status, shall be conclusive and binding absent manifest
error, and such Lender shall be deemed to be a Defaulting Lender (subject to
Section 2.15(b)) as of the date established therefor by the Administrative Agent in a
written notice of such determination, which shall be delivered by the
Administrative Agent to the Borrower, each L/C Issuer, the Swing Line Lender and
each other Lender promptly following such determination. 

8 







      
“Designated Jurisdiction” means any country or territory to the extent that such
country or territory itself is the subject of any Sanction. 

      
“Disposition” or “Dispose” means the sale, transfer, license, lease or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith. 

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

      
“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 Administrative Agent or an 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. 

      
“Domestic Subsidiary” means any Subsidiary that is organized under the Laws of the
United States, any state thereof or the District of Columbia. 

      
“Eligible Assignee” means any Person that meets the requirements to be an assignee under
Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required
under Section 10.06(b)(iii)). 

      
“Eligible Investments” means (a) direct obligations of the United States of America
or any governmental agency thereof which are fully guaranteed or insured by the
United States of America; provided that such obligations mature
within two years from the date of acquisition thereof; (b) Dollar denominated
time deposit maturing within one year issued by any bank organized and existing
under the Laws of the United States of America or any state thereof and having
aggregate capital and surplus in excess of $1,000,000,000; (c) investments in
any time deposit issued by any bank with a long-term credit rating of BBB or
better by S&P and a long-term obligation rating of Baa2 or better by Moody’s
made in connection with a Cash Pool Arrangement; (d) money market mutual funds
having assets in excess of $1,000,000,000; (e) commercial paper rated not less
than P-1 or A-1 or their equivalent by Moody’s or S&P, respectively; (f) tax
exempt securities of an issuer organized in the United States of America rated A
or better by Moody’s or S&P; (g) repurchase agreements entered into with any
bank, trust company or financial institution organized
under the Laws of the United States of America or any state thereof or under the
Laws of Puerto Rico, having capital and surplus in an aggregate amount not less
than $1,000,000,000 and relating to any of the obligations referred to in clause
(a) above; (h) short-term investments by any Foreign Subsidiary made in the
ordinary course of its business and in accordance with the Borrower’s guidelines
and procedures, provided that the aggregate amount of such investments by the Foreign
Subsidiaries shall not exceed $50,000,000, at any one time outstanding; (i)
investments in corporate bonds or notes having maturities of not more than five
years from the date of acquisition thereof and having a rating of at least A- or
better by S&P and A3 or better by Moody’s or (j) cash.

9 







      
“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems. 

      
“Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any of its 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 Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any
contract, agreement or other consensual arrangement pursuant to which liability
is assumed or imposed with respect to any of the foregoing. 

      
“Equity Interests” means, with respect to any Person, all of the shares of capital stock
of (or other ownership or profit interests in) such Person, all of the warrants,
options or other rights for the purchase or acquisition from such Person of
shares of capital stock of (or other ownership or profit interests in) such
Person, all of the securities convertible into or exchangeable for shares of
capital stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such Person of
such shares (or such other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares, warrants,
options, rights or other interests are outstanding on any date of determination.


      
“ERISA”
means the Employee Retirement Income Security Act of 1974. 

      
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the
Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code). 

      
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to
Section 4063 of ERISA during a plan year in which such entity was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Pension Plan amendment as a termination under Section 4041 or 4041A of
ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension
Plan; (f) any event or condition which constitutes grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (g) the determination that any Pension Plan is considered an
at-risk plan or a plan in endangered or critical status within the meaning of
Sections 430, 431 and 432 of the Code or Sections 303, 304 and 305 of ERISA; or
(h) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.

10 









“Euro” and “€” mean the single currency of the
Participating Member States. 

“Eurocurrency Rate” means: 

     (a) for any
Interest Period with respect to a Eurocurrency Rate Loan, the rate per annum
equal to the greater of (i) 0% and (ii) (A) the British Bankers Association
LIBOR Rate or the successor thereto if the British Bankers Association is no
longer making a LIBOR rate available (“LIBOR”), as published by Reuters (or
such other commercially available source providing quotations of LIBOR as may be
designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest
Period, for deposits in the relevant currency (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period or, (B) if
such rate is not available at such time for any reason, the rate per annum
determined by the Administrative Agent to be the rate at which deposits in the
relevant currency for delivery on the first day of such Interest Period in Same
Day Funds in the approximate amount of the Eurocurrency Rate Loan being made,
continued or converted and with a term equivalent to such Interest Period would
be offered by Bank of America’s London Branch (or other Bank of America branch
or Affiliate) to major banks in the London or other offshore interbank market
for such currency at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the commencement of such Interest Period; and 

    
(b) for any
interest calculation with respect to a Base Rate Loan on any date, the rate per
annum equal to (i) LIBOR, at approximately 11:00 a.m., London time determined
two London Banking Days prior to such date for Dollar deposits being delivered
in the London interbank market for a term of one month commencing that day or
(ii) if such published rate is not available at such time for any reason, the
rate per annum determined by the Administrative Agent to be the rate at which
deposits in Dollars for delivery on the date of determination in same day funds
in the approximate amount of the Base Rate Loan being made or maintained and
with a term equal to one month would be offered by Bank of America’s London
Branch to major banks in the London interbank Eurodollar market at their request
at the date and time of determination. 

    
“Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based
on clause (a) of the
definition of “Eurocurrency Rate”. Eurocurrency Rate Loans may be denominated in
Dollars or in an Alternative Currency. All Committed Loans denominated in an
Alternative Currency must be Eurocurrency Rate Loans. 

    
“Event of Default” has the meaning
specified in Section 8.01. 

    
“Excluded Taxes” means any of the following Taxes imposed on or with respect
to any Recipient or required to be withheld or deducted from a payment to a
Recipient, (a) Taxes imposed on or measured by net income (however denominated),
franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result
of such Recipient being organized under the laws of, or having its principal
office or, in the case of any Lender, its Lending Office located in, the
jurisdiction imposing such Tax (or any political subdivision thereof) or (ii)
that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal
withholding Taxes imposed on amounts payable to or for the account of such
Lender with respect to an applicable interest in a Loan or Commitment pursuant
to a law in effect on the date on which (i) such Lender acquires such interest
in the Loan or Commitment (other than pursuant to an assignment request by the
Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in
each case to the extent that, pursuant to Section
3.01(a)(ii) or Section 3.01(c), amounts with respect
to such Taxes were payable either to such Lender’s assignor immediately before
such Lender became a party hereto or to such Lender immediately before it
changed its Lending Office, (c) Taxes attributable to such Recipient’s failure
or inability to comply with Section
3.01(e) (other than as a result of a Change
in Law) and (d) any U.S. federal withholding Taxes imposed pursuant to
FATCA.

11 







    
“Existing Credit
Agreement” means that certain Credit
Agreement dated as of July 13, 2010, among the Borrower, the lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. 

    
“Existing Letters of
Credit” means those letters of credit issued
by an L/C Issuer prior to the Closing Date for the account of the Borrower or
any of its Subsidiaries and identified on Schedule 2.03. 

    
“FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board. 

    
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or any amended or successor version that is substantively comparable
and not materially more onerous to comply with), any current or future
regulations or official interpretations thereof and any agreements entered into
pursuant to Section 1471(b)(1) of the Code. 

    
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of 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 Administrative Agent. 

    
“Fee Letters” means, collectively, (a) the letter agreement, dated March 4, 2013,
among the Borrower, Bank of America, MLPFS and J.P. Morgan Securities, (b) the
letter agreement, dated March 4, 2013, among the Borrower, Bank of America and
MLPFS and (c) the letter agreement, dated March 4, 2013, among the Borrower,
JPMorgan and J.P. Morgan Securities. 

    
“Foreign Lender” means, with respect to the Borrower, (a) if the Borrower is
a U.S. Person, a Lender that is not a U.S. Person, and (b) if the Borrower is
not a U.S. Person, a Lender that is resident or organized under the laws of a
jurisdiction other than that in which the Borrower is resident for tax purposes.
For purposes of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.


    
“Foreign Subsidiary” means any Subsidiary that is organized under the Laws of a
jurisdiction other than the United States, a State thereof or the District of
Columbia. 

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

    
“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with
respect to each L/C Issuer, such Defaulting Lender’s Applicable Percentage of
the Outstanding Amount of all outstanding L/C Obligations owing to such L/C
Issuer other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash
Collateralized in accordance with the terms hereof, and (b) with respect to the
Swing Line Lender, such Defaulting Lender’s Applicable Percentage of Swing Line
Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders in accordance
with the terms hereof.

12 







    
“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 activities.


    
“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, statements and
pronouncements of the Financial Accounting Standards Board, and accounting
standard updates and codification, including those set forth in FASB ASC Topic
105, 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, consistently applied. 

    
“Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government (including any
supranational bodies such as the European Union or the European Central Bank).


    
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise,
of such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the
“primary obligor”) in any manner, whether directly or indirectly, 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 Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other
obligation of the payment or performance of such Indebtedness 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 Indebtedness
or other obligation, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness 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 Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to
obtain any such Lien). The amount of any Guarantee shall be deemed to be an
amount equal to 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. The term
“Guarantee” as a verb has a corresponding meaning. 

    
“Hazardous Materials” means all explosive or radioactive substances or wastes and
all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos-containing materials,
polychlorinated biphenyls, radon gas, infectious or medical wastes and all other
substances or wastes of any nature regulated pursuant to any Environmental Law.



13 






    
“Indebtedness” means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP: 

    
(a) all
obligations of such Person for borrowed money and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments; 

    
(b) all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties,
surety bonds and similar instruments; 

    
(c) net
obligations of such Person under any Swap Contract; 

    
(d) all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business
and, in each case, not past due for more than 60 days after the date on which
such trade account payable was created); 

    
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on
property owned or being purchased by such Person (including indebtedness arising
under conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited in
recourse; 

    
(f) Capital
Lease Obligations and Synthetic Lease Obligations; 

    
(g) any
obligation of such Person (whether at the request of the holder or otherwise) to
purchase, redeem, retire, defease or otherwise acquire, in each case prior to
the date that is 91 days after the Maturity Date, any Equity Interest in such
Person, valued, in the case of a redeemable preferred interest, at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; and 

    
(h) all
Guarantees of such Person in respect of any of the foregoing. 

    
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease or Synthetic Lease
Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date. 

    
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment made by or on account of any obligation of the
Borrower under any Loan Document and (b) to the extent not otherwise described
in clause (a), Other Taxes. 

    
“Indemnitees” has the meaning specified in Section
10.04(b). 

    
“Information” has the meaning specified in Section
10.07. 

    
“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the
last day of each Interest Period applicable to such Loan and the Maturity Date;
provided,
however,
that if any Interest Period for a Eurocurrency Rate Loan exceeds three months,
the respective dates 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 (including a Swing Line Loan), the last Business Day of each March,
June, September and December and the Maturity Date. 

14 







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

    
(i) 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, in the case of a
Eurocurrency Rate Loan, such Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding Business Day;


    
(ii) any
Interest Period pertaining to a Eurocurrency Rate Loan 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 

    
(iii) no
Interest Period shall extend beyond the Maturity Date. 

    
“Investment” means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person and any arrangement pursuant to which the investor
Guarantees Indebtedness of such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment, but reduced by all returns of principal or capital received on or
prior to the date of determination (including all cash dividends, cash
distributions and cash repayments in the nature of a return of principal or
capital). 

    
“IRS” means the United States Internal Revenue Service. 

    
“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (or such later version thereof as may be in effect at the time of
issuance). 

    
“Issuer Documents” means with respect to any Letter of Credit, the Letter of
Credit Application, and any other document, agreement and instrument entered
into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in
favor of the applicable L/C Issuer and relating to such Letter of Credit.


    
“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.

    
“J.P. Morgan Securities” means J.P. Morgan Securities LLC and its
successors.

    
“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. 

15 







    
“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 Applicable 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 Committed 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 increase of the amount
thereof. 

    
“L/C Issuer” means (i) Bank of America in its capacity as issuer of Letters of
Credit hereunder, (ii) JPMorgan, in its capacity as issuer of Letters of Credit
hereunder, and (iii) any successor issuer of Letters of Credit hereunder.


    
“L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing
the amount available to be drawn under any Letter of Credit, the amount of such
Letter of Credit shall be determined in accordance with Section 1.09. For all
purposes of this Agreement, if on any date of determination a Letter of Credit
has expired by its terms but any amount may still be drawn thereunder by reason
of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed
to be “outstanding” in the amount so remaining available to be drawn.


    
“Lender” has the meaning specified in the introductory paragraph hereto and,
unless the context requires otherwise, includes the Swing Line Lender.


    
“Lending Office” means, as to any Lender, the office or offices of such
Lender described as such in such Lender’s Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent. 

    
“Letter of Credit” means any standby letter of credit issued hereunder
providing for the payment of cash upon the honoring of a presentation thereunder
and shall include the Existing Letters of Credit. Letters of Credit may be
issued in Dollars or in an Alternative Currency. 

    
“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 applicable L/C Issuer. 

    
“Letter of Credit Expiration
Date” means the day that is seven days prior
to the Maturity Date then in effect (or, if such day is not a Business Day, the
next preceding Business Day). 

    
“Letter of Credit Fee” has the meaning specified in Section 2.03(h). 

    
“Letter of Credit
Sublimit” means an amount equal
to $100,000,000.
The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate
Commitments. 

    
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement in the nature of
a security interest of any kind or nature whatsoever (including any conditional
sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing). 

16 







    
“Limited Recourse
Carve-Outs” means customary carve-outs to
non-recourse Indebtedness for personal recourse of the Borrower and Subsidiaries
(other than the applicable Securitization Finance Subsidiary as to which such
Indebtedness may be full recourse) for fraud, misrepresentation, misapplication
of cash, waste, environmental claims and liabilities and other circumstances
customarily excluded by lenders from exculpation provisions and/or included in
separate indemnification agreements in non-recourse financings, including
related representations, warranties and covenants, all as determined by the
Borrower in good faith.

    
“Loan” means an extension of credit by a Lender to a Borrower under
Article II
in the form of a Committed Loan or a Swing Line Loan. 

    
“Loan Documents” means this Agreement, each Note, each Issuer Document, any
agreement creating or perfecting rights in Cash Collateral pursuant to the
provisions of Section 2.14 and the Fee Letters. 

    
“London Banking Day” means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank Eurodollar market.


    
“Mandatory Cost” means, with respect to any period, the percentage rate per
annum determined in accordance with Schedule
1.01. 

    
“Material Adverse
Effect” means (a) a material adverse change
in, or a material adverse effect on, the results of operations, business,
properties, liabilities or financial condition of the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and
remedies of the Administrative Agent or any Lender under any Loan Document; or
(c) a material adverse effect upon the legality, validity, binding effect or
enforceability against the Borrower of any Loan Document to which it is a party.


     “Maturity
Date” means April 11, 2018; provided, however, that if such date is not a Business Day, the Maturity Date
shall be the next preceding Business Day. 

    
“Minimum Collateral
Amount” means, at any time, (i) with respect
to Cash Collateral consisting of cash or deposit account balances provided to
reduce or eliminate Fronting Exposure during the existence of a Defaulting
Lender, an amount equal to 102% of the Fronting Exposure of the applicable L/C
Issuer with respect to Letters of Credit issued and outstanding at such time,
(ii) with respect to Cash Collateral consisting of cash or deposit account
balances provided in accordance with the provisions of Section 2.14(a)(i),
(a)(ii) or
(a)(iii),
an amount equal to 102% of the Outstanding Amount of all LC Obligations, and
(iii) otherwise, an amount determined by the Administrative Agent and the
applicable L/C Issuer in their sole discretion. 

    
“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and its
successors. 

    
“Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.


    
“Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes
or is obligated to make contributions, or during the preceding five plan years,
has made or been obligated to make contributions. 

    
“Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the Borrower or any ERISA Affiliate) at least two of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.


17 







    
“New Notes” means the $375 million of the Borrower’s 5.00% Senior Notes due 2020
issued by the Borrower pursuant to the New Notes Indenture. 

    
“New Notes Indenture” means the Indenture dated as of June 15, 2010, by and among
the Borrower and The Bank of New York Mellon, as Trustee, together with the
Borrower Order dated as of June 18, 2010, issued in connection with the New
Notes and executed by the chief financial officer of the Borrower. 

    
“New Notes Trustee” means, at any time, the trustee under the New Notes
Indenture at such time. 

    
“Non-Consenting Lender” means any Lender that does not approve any consent, waiver
or amendment that (i) requires the approval of all Lenders or all affected
Lenders in accordance with the terms of Section 10.01 and (ii) has been
approved by the Required Lenders. 

    
“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting
Lender at such time. 

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

    
“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower arising under any Loan 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 the Borrower 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. 

    
“OFAC” means the Office of Foreign Assets Control of the United States
Department of the Treasury. 

    
“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 Connection Taxes” means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the
jurisdiction imposing such Tax (other than connections arising from such
Recipient having executed, delivered, become a party to, performed its
obligations under, received payments under, received or perfected a security
interest under, engaged in any other transaction pursuant to or enforced any
Loan Document, or sold or assigned an interest in any Loan or Loan Document).


    
“Other Taxes” means all present or future stamp, court or documentary, intangible,
recording, filing or similar Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, from the
receipt or perfection of a security interest under, or otherwise with respect
to, any Loan Document, except any such Taxes that are Other Connection Taxes
imposed with respect to an assignment (other than an assignment made pursuant to
Section 3.06).

18 







    
“Outstanding Amount” means (i) with respect to Committed Loans on any date, the
Dollar Equivalent amount of the aggregate outstanding principal amount thereof
after giving effect to any borrowings and prepayments or repayments of such
Committed Loans occurring on such date; (ii) with respect to Swing Line Loans on
any date, the aggregate outstanding principal amount thereof after giving effect
to any borrowings and prepayments or repayments of such Swing Line Loans
occurring on such date; and (iii) with respect to any L/C Obligations on any
date, the Dollar Equivalent amount of the aggregate outstanding 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 by the
Borrower of Unreimbursed Amounts. 

    
“Overnight Rate” means, for any day, (a) with respect to any amount
denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an
overnight rate determined by the Administrative Agent, an L/C Issuer, or the
Swing Line Lender, as the case may be, in accordance with banking industry rules
on interbank compensation, and (b) with respect to any amount denominated in an
Alternative Currency, the rate of interest per annum at which overnight deposits
in the applicable Alternative Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by a branch or Affiliate of Bank of America in the applicable offshore
interbank market for such currency to major banks in such interbank market.


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

    
“Participating Member
State” means any member state of the European
Union that has the Euro as its lawful currency in accordance with legislation of
the European Union relating to Economic and Monetary Union. 

    
“Participant Register” has the meaning specified in Section 10.06(d). 

    
“PBGC” means the Pension Benefit Guaranty Corporation. 

    
“Pension Plan” means any employee pension benefit plan (including a
Multiple Employer Plan or a Multiemployer Plan) that is maintained or is
contributed to by the Borrower and any ERISA Affiliate and is either covered by
Title IV of ERISA or is subject to the minimum funding standards under Section
412 of the Code. 

    
“Permitted Acquisition” means an acquisition (whether pursuant to an acquisition of
Equity Interests, assets or otherwise) by the Borrower or any of its
Subsidiaries from any Person or Persons of a business that is substantially
similar, or substantially related or incidental to, any line of business
conducted by the Borrower and/or its Subsidiaries on the date hereof, in each
case so long as the following conditions are satisfied: (a) the acquisition
shall have been approved by the board of directors or other appropriate
governing body of the Person whose business is to be acquired; (b) immediately
before and after giving effect to such acquisition, no Default shall have
occurred and be continuing or would result therefrom; (c) if the acquisition is
of Equity Interests of a Person, such Person becomes a Subsidiary of the
Borrower; and (d) the Borrower shall deliver to the Administrative Agent a
certification that the Consolidated Leverage Ratio (with Consolidated EBITDA
calculated on a Pro Forma Basis to give effect to the consummation of such
acquisition and any related Disposition, and calculated to give pro forma effect to any
incurrence and/or repayment of Indebtedness in connection therewith) shall not
exceed the level required by Section
7.10, which such certification shall, if the
total consideration exceeds $100,000,000, be accompanied by a certificate
showing the computation thereof, for the period of four full fiscal quarters
immediately preceding such acquisition for which financial statements have been
delivered pursuant to the terms hereof (prepared in good faith and in a manner
and using a methodology which is consistent with the most recent financial
statements delivered pursuant to Section
6.01 or, prior to the delivery of any such
financial statements, the financial statements referred to in Section 5.05).

19 







    
“Permitted Liens” has the meaning specified in Section 7.01. 

    
“Permitted Securitization
Financing” shall mean Indebtedness incurred
by a Securitization Finance Subsidiary in connection with the securitization of
receivables assigned to it by its direct parent; provided that (a) the Indebtedness in
respect of any such financing shall not be directly or indirectly Guaranteed by,
or directly or indirectly collateralized by (or otherwise have recourse to
(other than with respect to Limited Recourse Carve-Outs)) any of the assets of,
the Borrower or any Subsidiary other than such Securitization Finance Subsidiary
and any Subsidiary of such Securitization Finance Subsidiary, and (b) neither
the Borrower nor any Subsidiary other than such Securitization Finance
Subsidiary and any Subsidiary of such Securitization Finance Subsidiary shall
provide any other direct or indirect credit support of any kind in respect of
such Indebtedness. 

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

    
“Plan” means any employee benefit plan within the meaning of Section 3(3) of
ERISA (including a Pension Plan), maintained for employees of the Borrower or
any ERISA Affiliate or any such Plan to which the Borrower or any ERISA
Affiliate is required to contribute on behalf of any of its employees.


    
“Platform” has the meaning specified in Section
6.02. 

    
“Priority Indebtedness” means the sum, without duplication, for the Borrower and its
Subsidiaries, of (a) all Indebtedness secured by any consensual Lien on any
assets of the Borrower or any Subsidiary, (b) all Indebtedness referred to in
clause (f)
of the definition of “Indebtedness”, (c) all Indebtedness of the Subsidiaries
(other than Indebtedness owed to the Borrower or another Subsidiary) and (d) all
Sale-Leaseback Transactions; provided, that Priority Indebtedness
shall not include (i) Cash Pool Obligations under any Cash Pool Arrangement to
the extent, and for so long as, such obligations do not exceed the Cash Pool
Availability under such Cash Pool Arrangement, (ii) any Indebtedness under
arrangements for factoring of foreign receivables to the extent the aggregate
uncollected amount of the receivables transferred pursuant to such arrangements
does not exceed $50,000,000, (iii) contingent obligations under undrawn letters
of credit, bank guarantees, surety bonds and similar instruments supporting
trade payables, workers’ compensation and similar obligations and other
non-financial obligations, and (iv) Permitted Securitization
Financings.

    
“Pro Forma Basis” means, with respect to the determination of Consolidated
EBITDA for purposes of compliance with the Consolidated Leverage Ratio hereunder
for any purpose, compliance therewith after giving effect to any acquisition or
any Disposition of a Subsidiary or operating entity, in each case for which
historical financial statements for the relevant period are available
“(including pro forma adjustments arising out of events which are directly
attributable to such acquisition or Disposition, are factually supportable and
expected to have a continuing impact, including cost savings resulted from
headcount reductions, facility closings or similar restructurings, in each case
to the extent such adjustments or savings (a) would be permitted to be reflected
in pro forma financial information complying with the requirements of GAAP and
Article 11 of Regulation S-X under the Securities Act of 1933, as amended, as
interpreted by the SEC, and as certified by a Responsible Officer of the
Borrower or (b) have been realized or for which the steps necessary for
realization have been taken and as certified by a Responsible Officer of the
Borrower) using, for purposes of determining such compliance, the historical
financial statements of all entities or assets so acquired or Disposed and the
consolidated financial statements of the Borrower and its Subsidiaries, which
shall be reformulated as if such acquisition or Disposition, and all other
acquisitions or Dispositions that have been consummated during the period had
been consummated at the beginning of such period.

20 







    
“Public Lender” has the meaning specified in Section 6.02. 

    
“Recipient” means the Administrative Agent, any Lender, any L/C Issuer or any other
recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder. 

    
“Refinancing Notes” means any bonds, notes or other debt instruments of the
Borrower issued and sold for the purpose of refinancing the New Notes.


    
“Register” has the meaning specified in Section
10.06(c). 

    
“Related Parties” means, with respect to any Person, such Person’s Affiliates
and the partners, directors, officers, employees, agents, trustees,
administrators, managers, advisors and representatives of such Person and of
such Person’s Affiliates. 

    
“Reportable Event” means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.


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

    
“Required Lenders” means, at any time, Lenders having Total Credit Exposures
representing more than 50% of the Total Credit Exposures of all Lenders. The
Total Credit Exposure of any Defaulting Lender shall be disregarded in
determining Required Lenders at any time; provided that, the amount of any
participation in any Swing Line Loan and Unreimbursed Amounts that such
Defaulting Lender has failed to fund that have not been reallocated to and
funded by another Lender shall be deemed to be held by the Lender that is the
Swing Line Lender or the applicable L/C Issuer, as the case may be, in making
such determination. 

    
“Responsible Officer” means the chief executive officer, president, chief
financial officer, treasurer, assistant treasurer or controller of the Borrower
and solely for purposes of the delivery of incumbency certificates pursuant to
Section 4.01, the secretary or any assistant secretary of the Borrower. Any document
delivered hereunder that is signed by a Responsible Officer of the Borrower
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
the Borrower. 

     “Restricted
Payment” has the meaning set forth in Section 7.06. 

    
“Revaluation Date” means (a) with respect to any Loan, each of the following:
(i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an
Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate
Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii)
such additional dates as the Administrative Agent shall determine or the
Required Lenders shall require; and (b) with respect to any Letter of Credit,
each of the following: (i) each date of issuance of a Letter of Credit
denominated in an Alternative Currency, (ii) each date of an amendment of any
such Letter of Credit having the effect of increasing the amount thereof, (iii)
each date of any payment by the applicable L/C Issuer under any Letter of Credit
denominated in an Alternative Currency, (iv) in the case of all Existing Letters
of Credit denominated in Alternative Currencies, the Closing Date, and
(v) such
additional dates as the Administrative Agent or the applicable L/C Issuer shall
determine or the Required Lenders shall require.

21 







    
“Revolving Credit
Exposure” means, as to any Lender at any
time, the aggregate Outstanding Amount at such time of its Committed Loans and
the aggregate Outstanding Amount of such Lender’s participation in L/C
Obligations and Swing Line Loans at such time. 

    
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of The
McGraw-Hill Companies, Inc. and any successor thereto. 

    
“Sale-Leaseback
Transaction” means any arrangement whereby
the Borrower or a Subsidiary shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and, as part of such arrangement, rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred. The amount of any Sale-Leaseback
Transaction as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.

    
“Same Day Funds” means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent or an L/C Issuer, as the case may be, to
be customary in the place of disbursement or payment for the settlement of
international banking transactions in the relevant Alternative Currency.


    
“Sanction(s)” means any international economic sanction administered or enforced by
the United States Government (including without limitation, OFAC), the United
Nations Security Council, the European Union, Her Majesty’s Treasury or other
relevant sanctions authority. 

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

    
“Securitization Finance
Subsidiary” means a Subsidiary that is
created or acquired after the Closing Date and that is a borrower with respect
to a Permitted Securitization Financing.

    
“Special Notice
Currency” means at any time an Alternative
Currency, other than the currency of a country that is a member of the
Organization for Economic Cooperation and Development at such time located in
North America or Europe. 

    
“Spot Rate” for a currency means the rate determined by the Administrative 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 Administrative Agent or an L/C Issuer may obtain such
spot rate from another financial institution designated by the Administrative
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” and “£” mean the lawful currency of the United Kingdom. 

22 







    
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business 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 Borrower.


    
“Swap Contract” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement, provided, however, “Swap Contract”
shall not include an Accelerated Stock Repurchase or similar transaction.


    
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after
taking into account the effect of any legally enforceable netting agreement
relating to such Swap Contracts, (a) for any date on or after the date such Swap
Contracts have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date
referenced in clause (a), the amount(s) determined as the mark-to-market
value(s) for such Swap Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender). 

    
“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to
Section 2.04. 

    
“Swing Line Lender” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder. 

    
“Swing Line Loan” has the meaning specified in Section 2.04(a). 

    
“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to
Section 2.04(b), which, if in writing, shall be substantially in the form of
Exhibit B.


    
“Swing Line Sublimit” means an amount equal to the lesser of (a)
$50,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of,
and not in addition to, the Aggregate Commitments. 

    
“Synthetic Lease
Obligation” means the monetary obligation of
a Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the
indebtedness of such Person (without regard to accounting treatment).


23 







    
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes a single shared platform and which was
launched on November 19, 2007. 

    
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be
operative, such other payment system, if any, determined by the Administrative
Agent to be a suitable replacement) is open for the settlement of payments in
Euro. 

    
“Taxes” means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto. 

    
“Threshold Amount” means $50,000,000. 

    
“Total Credit Exposure” means, as to any Lender at any time, the unused Commitments
and Revolving Credit Exposure of such Lender at such time. 

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

    
“Transactions” means the execution, delivery and performance by the
Borrower of the Loan Documents, the borrowing of Loans and the issuance of
Letters of Credit hereunder. 

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

    
“UCP” means, with respect to any Letter of Credit, the Uniform Customs and
Practice for Documentary Credits, International Chamber of Commerce (“ICC”)
Publication No. 600 (or such later version thereof as may be in effect at the
time of issuance). 

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

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

    
“U.S. Person” means any Person that is a “United States Person” as defined in Section
7701(a)(30) of the Code. 

    
“US Subsidiary” means any Subsidiary that is organized under the Laws of the
United States of America, any State thereof or the District of
Columbia.

    
“U.S. Tax Compliance
Certificate” has the meaning specified in
Section 3.01(e)(ii)(B)(III). 

    
“Yen” and “¥” mean the lawful currency of Japan. 

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

    
(a) The
definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
“include,”
“includes”
and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will”
shall be construed to have the same meaning and effect as the word
“shall.”
Unless the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document (including any Organization Document)
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein
or in any other Loan Document), (ii) any reference herein to any Person shall be
construed to include such Person’s successors and assigns, (iii) the words
“hereto,” “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document,
shall be construed to refer to such Loan Document in its entirety and not to any
particular provision thereof, (iv) all references in a Loan Document to
Articles, Sections, Exhibits and Schedules shall be construed to refer to
Articles and Sections of, and Exhibits and Schedules to, the Loan Document in
which such references appear, (v) any reference to any law shall include all
statutory and regulatory provisions consolidating, amending, replacing or
interpreting such law and any reference to any law or regulation shall, unless
otherwise specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract
rights.

24 







    
(b) 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.” 

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

    
1.03 Accounting Terms. (a)
Generally.
All references to GAAP in this Agreement shall be deemed to be subject to the
provisions of this Section
1.03. 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 applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein. Notwithstanding
the foregoing, for purposes of determining compliance with any covenant
(including the computation of any financial covenant) contained herein,
Indebtedness of the Borrower and its Subsidiaries shall be deemed to be carried
at 100% of the outstanding principal amount thereof, and the effects of FASB ASC
825 and FASB ASC 470-20 on financial liabilities shall be disregarded.


    
(b) Changes in GAAP. If at any time any
change in GAAP would affect the computation of any financial ratio or
requirement set forth in any Loan Document, and either the Borrower or the
Required Lenders shall so request, the Administrative 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, (A) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (B) the Borrower shall provide to the Administrative
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. 

25 







    
1.04 Rounding. Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by
which such ratio is expressed herein and rounding the result up or down to the
nearest number (with a rounding-up if there is no nearest number). 

    
1.05 Exchange Rates; Currency Equivalents. (a) The Administrative Agent or the applicable 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 the Borrower 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 Administrative Agent or an L/C Issuer,
as applicable. 

    
(b) Wherever in this Agreement in connection with a Committed Borrowing,
conversion, continuation or prepayment of a Eurocurrency Rate Loan or 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 Committed
Borrowing, Eurocurrency Rate Loan or 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 Administrative Agent or an L/C Issuer, as the case may be. 

    
1.06 Additional Alternative Currencies. (a) The Borrower may from time to time request that
Eurocurrency Rate Loans be made and/or Letters of Credit be issued in a currency
other than those specifically listed in the definition of “Alternative
Currency;” provided that such requested currency is a lawful currency (other than Dollars)
that is readily available and freely transferable and convertible into Dollars.
In the case of any such request with respect to the making of Eurocurrency Rate
Loans, such request shall be subject to the approval of the Administrative Agent
and the Lenders; and in the case of any such request with respect to the
issuance of Letters of Credit, such request shall be subject to the approval of
the Administrative Agent and each L/C Issuer. 

    
(b) Any
such request shall be made to the Administrative Agent not later than 11:00
a.m., 20 Business Days prior to the date of the desired Credit Extension (or
such other time or date as may be agreed by the Administrative Agent and, in the
case of any such request pertaining to Letters of Credit, the applicable L/C
Issuer, in its or their sole discretion). In the case of any such request
pertaining to Eurocurrency Rate Loans, the Administrative Agent shall promptly
notify each Lender thereof; and in the case of any such request pertaining to
Letters of Credit, the Administrative Agent shall promptly notify the applicable
L/C Issuer thereof. Each Lender (in the case of any such request pertaining to
Eurocurrency Rate Loans) or the applicable L/C Issuer (in the case of a request
pertaining to Letters of Credit) shall notify the Administrative Agent, not
later than 11:00 a.m., ten Business Days after receipt of such request whether
it consents, in its sole discretion, to the making of Eurocurrency Rate Loans or
the issuance of Letters of Credit, as the case may be, in such requested
currency. 

    
(c) Any
failure by a Lender or an L/C Issuer, as the case may be, to respond to such
request within the time period specified in the preceding sentence shall be
deemed to be a refusal by such Lender or such L/C Issuer, as the case may be, to
permit Eurocurrency Rate Loans to be made or Letters of Credit to be issued
in such requested currency. If the Administrative Agent and all the Lenders
consent to making Eurocurrency Rate Loans in such requested currency, the
Administrative Agent shall so notify the Borrower and such currency shall
thereupon be deemed for all purposes to be an Alternative Currency hereunder for
purposes of any Committed Borrowings of Eurocurrency Rate Loans; and if the
Administrative Agent and the L/C Issuers consent to the issuance of Letters of
Credit in such requested currency, the Administrative Agent shall so notify the
Borrower and such currency shall thereupon be deemed for all purposes to be an
Alternative Currency hereunder for purposes of any Letter of Credit issuances.
If the Administrative Agent shall fail to obtain consent to any request for an
additional currency under this Section
1.06, the Administrative Agent shall promptly
so notify the Borrower.

26 










     1.07 Change of Currency. (a)
Each obligation of the Borrower to make a payment denominated in the national
currency unit of any member state of the European Union that adopts the Euro as
its lawful currency after the date hereof shall be redenominated into Euro at
the time of such adoption. If, in relation to the currency of any such member
state, the basis of accrual of interest expressed in this Agreement in respect
of that currency shall be inconsistent with any convention or practice in the
London interbank market for the basis of accrual of interest in respect of the
Euro, such expressed basis shall be replaced by such convention or practice with
effect from the date on which such member state adopts the Euro as its lawful
currency; provided that if any Committed Borrowing in the currency of such member state is
outstanding immediately prior to such date, such replacement shall take effect,
with respect to such Committed Borrowing, at the end of the then current
Interest Period. 


     (b) Each
provision of this Agreement shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect the adoption of the Euro by any member state of the
European Union and any relevant market conventions or practices relating to the
Euro. 

    
(c) Each
provision of this Agreement also shall be subject to such reasonable changes of
construction as the Administrative Agent may from time to time specify to be
appropriate to reflect a change in currency of any other country and any
relevant market conventions or practices relating to the change in currency.



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

    
1.09 Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at
any time shall be deemed to be the Dollar Equivalent of the stated amount of
such Letter of Credit in effect at such time; provided, however, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related
thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the Dollar
Equivalent of the maximum stated amount of such Letter of Credit after giving
effect to all such increases, whether or not such maximum stated amount is in
effect at such time. 

ARTICLE II. 
THE COMMITMENTS AND CREDIT EXTENSIONS


    
2.01 Committed Loans.
Subject to the terms and conditions set forth herein, each Lender severally
agrees to make loans (each such loan, a “Committed Loan”) to the Borrower in
Dollars or in one or more Alternative Currencies 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 Committed Borrowing, (i) the Total Outstandings
shall not exceed the Aggregate Commitments, (ii)
the Revolving Credit Exposure of any Lender shall not exceed such Lender’s
Commitment, and (iii) the aggregate Outstanding Amount of all Committed Loans
and Letters of Credit denominated in Alternative Currencies shall not exceed the
Alternative Currency Sublimit. 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
2.05, and reborrow under this Section 2.01. Committed
Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided
herein. 

27








2.02 Borrowings, Conversions and
Continuations of Committed Loans. 

     (a) Each
Committed Borrowing, each conversion of Committed Loans from one Type to the
other, and each continuation of Eurocurrency Rate Loans shall be made upon the
Borrower’s irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (i) three Business Days prior to the requested date of any
Borrowing of, conversion to or continuation of Eurocurrency Rate Loans
denominated in Dollars or of any conversion of Eurocurrency Rate Loans
denominated in Dollars to Base Rate Committed Loans, (ii) four Business Days (or
five Business Days in the case of a Special Notice Currency) prior to
the requested date of any Borrowing or continuation of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (iii) on the requested date of any
Borrowing of Base Rate Committed Loans; provided, however, that if the Borrower wishes
to request Eurocurrency 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 Administrative Agent not
later than 11:00 a.m. (i) four Business Days prior to the requested date of such
Borrowing, conversion or continuation of Eurocurrency Rate Loans denominated in
Dollars, or (ii) five Business Days (or six Business days in the case of a
Special Notice Currency) prior to the requested date of such Borrowing,
conversion or continuation of Eurocurrency Rate Loans denominated in Alternative
Currencies, whereupon the Administrative Agent shall give prompt notice to the
Lenders of such request and determine whether the requested Interest Period is
acceptable to all of them. Not later than 11:00 a.m., (i) three Business Days
before the requested date of such Borrowing, conversion or continuation of
Eurocurrency Rate Loans denominated in Dollars, or (ii) four Business Days (or
five Business days in the case of a Special Notice Currency) prior to the
requested date of such Borrowing, conversion or continuation of Eurocurrency
Rate Loans denominated in Alternative Currencies, the Administrative Agent shall
notify the Borrower (which notice may be by telephone) whether or not the
requested Interest Period has been consented to by all the Lenders. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the
Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate
Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof (or the Alternative Currency Equivalent thereof).
Except as provided in Sections
2.03(c) and 2.04(c), each Committed Borrowing of
or conversion to Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan
Notice (whether telephonic or written) shall specify (i) whether the Borrower is
requesting a Committed Borrowing, a conversion of Committed Loans from one Type
to the other, or a continuation of Eurocurrency Rate Loans, (ii) the requested
date of the Borrowing, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be
borrowed or to which existing Committed Loans are to be converted, (v) if
applicable, the duration of the Interest Period with respect thereto, and (vi)
the currency of the Committed Loans to be borrowed. If the Borrower fails to
specify a currency in a Committed Loan Notice requesting a Borrowing, then the Committed Loans so requested shall be
made in Dollars. If the Borrower fails to specify a Type of Committed Loan in a
Committed Loan Notice or if the Borrower fails to give a timely notice
requesting a conversion or continuation, then the applicable Committed Loans
shall be made as, or converted to, Base Rate Loans; provided, however, that in the case of a failure
to timely request a continuation of Committed Loans denominated in an
Alternative Currency, such Loans shall be continued as Eurocurrency Rate Loans
in their original currency with an Interest Period of one month. Any 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 Eurocurrency Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurocurrency Rate Loans in any such Committed Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month. No Committed Loan may be converted into or continued as a
Committed Loan denominated in a different currency, but instead must be prepaid
in the original currency of such Committed Loan and reborrowed in the other
currency. 


28








     (b) Following receipt of a Committed Loan Notice, the Administrative Agent
shall promptly notify each Lender of the amount (and currency) of its Applicable
Percentage of the applicable Committed Loans, and if no timely notice of a
conversion or continuation is provided by the Borrower, the Administrative Agent
shall notify each Lender of the details of any automatic conversion to Base Rate
Loans or continuation of Committed Loans denominated in a currency other than
Dollars, in each case as described in the preceding subsection. In the case of a
Committed Borrowing, each Lender shall make the amount of its Committed Loan
available to the Administrative Agent in Same Day Funds at the Administrative
Agent’s Office for the applicable currency not later than 1:00 p.m., in the case
of any Committed Loan denominated in Dollars, and not later than the Applicable
Time specified by the Administrative Agent in the case of any Committed Loan in
an Alternative Currency, in each case on the Business Day specified in the
applicable Committed Loan Notice. 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 Administrative Agent shall make all funds so received available to
the Borrower in like funds as received by the Administrative Agent either by (i)
crediting the account of the Borrower on the books of Bank of America with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower; provided, however, that if, on the date the
Committed Loan Notice with respect to such Borrowing denominated in Dollars is
given by the Borrower, there are L/C Borrowings outstanding, then the proceeds
of such Borrowing, first, shall be applied to the payment in full of any such L/C
Borrowings, and, second, shall be made available to the Borrower as provided above.


    
(c) Except
as otherwise provided herein, a Eurocurrency Rate Loan may be continued or
converted only on the last day of an Interest Period for such Eurocurrency Rate
Loan. During the existence of a Default, no Loans may be requested as, converted
to or continued as Eurocurrency Rate Loans (whether in Dollars or any
Alternative Currency) without the consent of the Required Lenders, and the
Required Lenders may demand that any or all of the then outstanding Eurocurrency
Rate Loans denominated in an Alternative Currency be prepaid, or redenominated
into Dollars in the amount of the Dollar Equivalent thereof, on the last day of
the then current Interest Period with respect thereto. 

    
(d) The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon
determination of such interest rate. At any time that Base Rate Loans are
outstanding, the Administrative 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 Committed Borrowings, all conversions of Committed Loans
from one Type to the other, and all continuations of Committed Loans as the same
Type, there shall not be more than ten Interest Periods in effect with respect
to Committed Loans. 


29







     2.03 Letters of Credit.



     (a)
The Letter of Credit Commitment. 



     (i) Subject
to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in
reliance upon the agreements of the 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 Expiration Date, to issue Letters of Credit denominated in
Dollars or in one or more Alternative Currencies for the account of the
Borrower, and to amend or extend Letters of Credit previously issued by it, in
accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit;
and (B) the Lenders severally agree to participate in Letters of Credit issued
for the account of the Borrower and any drawings thereunder; provided that after giving
effect to any L/C Credit Extension with respect to any Letter of Credit, (x) the
Total Outstandings shall not exceed the Aggregate Commitments, (y) the Revolving
Credit Exposure of any Lender shall not exceed such Lender’s Commitment, and (z)
the Outstanding Amount of the L/C Obligations shall not exceed the Letter of
Credit Sublimit. Each request by the Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by the Borrower that the
L/C Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. 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. All Existing Letters
of Credit shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and
conditions hereof. 


         
     (ii) No L/C Issuer shall issue any
Letter of Credit, if: 


     (A) subject
to Section 2.03(b)(iii), the expiry date of the requested Letter of Credit would
occur more than twelve months after the date of issuance or last extension,
unless the Required Lenders have approved such expiry date; or 

    
(B) the
expiry date of the requested Letter of Credit would occur after the Letter of
Credit Expiration Date, unless all the Lenders have approved such expiry date.



30








     (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 the 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 the Letter of Credit in particular or shall impose upon
such L/C Issuer with respect to the 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 Closing Date, or shall impose upon such L/C
Issuer any unreimbursed loss, cost or expense which was not applicable on the
Closing Date and which such L/C Issuer in good faith deems material to
it; 

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

    
(C) except as otherwise agreed by the Administrative Agent and such L/C
Issuer, the Letter of Credit is in an initial stated amount less than
$500,000; 

     (D) except as otherwise agreed by the Administrative Agent and such L/C
Issuer, the Letter of Credit is to be denominated in a currency other than
Dollars or an Alternative Currency; 

    
(E) such L/C Issuer does not as of the issuance date of the requested Letter
of Credit issue Letters of Credit in the requested currency; or 

    
(F) any Lender is at that time a Defaulting Lender, unless such L/C Issuer
has entered into arrangements, including the delivery of Cash Collateral,
satisfactory to such L/C Issuer (in its sole discretion) with the Borrower or
such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure
(after giving effect to Section
2.15(a)(iv)) with respect to the Defaulting
Lender arising from either the Letter of Credit then proposed to be issued or
that Letter of Credit and all other L/C Obligations as to which such L/C Issuer
has actual or potential Fronting Exposure, as it may elect in its sole
discretion. 



     (iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would
not be permitted at such time to issue the Letter of Credit in its amended form
under the terms hereof. 

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


    
(vi) 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 each
L/C Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in Article
IX with respect to any acts taken or
omissions suffered by such L/C Issuer in connection with Letters of Credit
issued by it or proposed to be issued by it and Issuer Documents pertaining to
such Letters of Credit as fully as if the term “Administrative Agent” as used in
Article IX
included such L/C Issuer with respect to such acts or omissions, and (B) as
additionally provided herein with respect to such L/C Issuer.


31 








     (b)
Procedures for Issuance and Amendment of
Letters of Credit; Auto-Extension 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 one of the L/C
Issuers (with a copy to the Administrative Agent) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer
of the Borrower. Such Letter of Credit Application may be sent by facsimile, by
United States mail, by overnight courier, by electronic transmission using the
system provided by the applicable L/C Issuer, by personal delivery or by any
other means acceptable to the applicable L/C Issuer. Such Letter of Credit
Application must be received by such L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and time as
the Administrative Agent and such L/C Issuer may agree in a particular instance
in their 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 thereof; (C) the expiry date thereof; (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; (G) the purpose
and nature of the requested Letter of Credit; and (H) such other matters as such
L/C Issuer may 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 the applicable 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 require. Additionally, the Borrower shall furnish
to the applicable L/C Issuer and the Administrative Agent such other documents
and information pertaining to such requested Letter of Credit issuance or
amendment, including any Issuer Documents, as such L/C Issuer or the
Administrative Agent may require. 

     (ii)
Promptly after receipt of any Letter of Credit
Application, the applicable L/C Issuer will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such Letter of Credit Application from the Borrower and, if not, such
L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
applicable L/C Issuer has received written notice from any Lender, the
Administrative Agent or the Borrower, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that
one or more applicable conditions contained in Article IV shall not then be
satisfied, 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 the applicable L/C Issuer a risk participation in such Letter of
Credit in an amount equal to the product of such Lender’s Applicable Percentage
times the
amount of such Letter of Credit. 




32








     (iii) If
the Borrower so requests in any applicable Letter of Credit Application, the
applicable L/C Issuer may, in its sole discretion, agree to issue a Letter
of Credit that has automatic extension provisions
(each, an “Auto-Extension Letter of Credit”); provided that any such Auto-Extension
Letter of Credit must permit such L/C Issuer to prevent any such extension at
least once in each twelve-month 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 “Non-Extension Notice
Date”) in each such twelve-month period to be
agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the applicable L/C Issuer, the Borrower shall not be required to
make a specific request to such L/C Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to
have authorized (but may not require) the applicable L/C Issuer to permit the
extension of such Letter of Credit at any time to an expiry date not later than
the Letter of Credit Expiration Date; provided, however, that such L/C Issuer shall
not permit any such extension if (A) such L/C Issuer has determined that it
would not be permitted, or would have no obligation, at such time to issue such
Letter of Credit in its revised form (as extended) under the terms hereof (by
reason of the provisions of clause
(ii) or (iii) of Section 2.03(a) or otherwise), or (B)
it has received notice (which may be by telephone or in writing) on or before
the day that is seven Business Days before the Non-Extension Notice Date (1)
from the Administrative Agent that the Required Lenders have elected not to
permit such extension or (2) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in
Section 4.02 is not then satisfied, and in each such case directing such L/C Issuer
not to permit such extension. 

    
(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 applicable L/C Issuer will also deliver to the Borrower and the
Administrative 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 applicable L/C Issuer shall notify the Borrower
and the Administrative Agent thereof. In the case of a Letter of Credit
denominated in an Alternative Currency, the Borrower shall reimburse the
applicable 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, the applicable L/C Issuer shall notify the Borrower of the Dollar
Equivalent of the amount of the drawing promptly following the determination
thereof. Not later than 11:00 a.m. on the date of any payment by the applicable
L/C Issuer under a Letter of Credit to be reimbursed in Dollars, 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 through the
Administrative Agent in an amount equal to the amount of such drawing and in the
applicable currency. In the event that (A) a drawing denominated in an
Alternative Currency is to be reimbursed in Dollars pursuant to the second
sentence in this Section 2.03(c)(i) and (B) the Dollar amount paid by the Borrower, whether on or
after the Honor Date, shall not be adequate on the date of that payment to
purchase in accordance with normal banking
procedures a sum denominated in the Alternative Currency equal to the drawing,
the Borrower agrees, as a separate and independent obligation, to indemnify such
L/C Issuer for the loss resulting from its inability on that date to purchase
the Alternative Currency in the full amount of the drawing. If the Borrower
fails to timely reimburse the applicable L/C Issuer on the Honor Date, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (expressed in Dollars in the amount of 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
Applicable Percentage thereof. In such event, the Borrower shall be deemed to
have requested a Committed Borrowing 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 Committed Loan Notice). Any notice given by the applicable L/C Issuer or
the Administrative 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. 

33










     (ii) Each
Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds
available (and the Administrative Agent may apply Cash Collateral provided for
this purpose) for the account of the applicable L/C Issuer, in Dollars, at the
Administrative Agent’s Office for Dollar-denominated payments in an amount equal
to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m.
on the Business Day specified in such notice by the Administrative 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 Committed Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the applicable L/C Issuer in Dollars. 

    
(iii) With
respect to any Unreimbursed Amount that is not fully refinanced by a Committed
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 applicable 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 Administrative Agent
for the account of the applicable 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 Committed Loan or L/C Advance pursuant to this
Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender’s Applicable Percentage of
such amount shall be solely for the account of such L/C Issuer. 



34









     (v)
Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn
under Letters of Credit, as contemplated by this Section 2.03(c), shall be absolute and unconditional and shall not be
affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may
have against such L/C Issuer, the Borrower, any Subsidiary or any other Person for any reason whatsoever; (B) the occurrence or
continuance of a Default, 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 Committed 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 Committed Loan Notice). No such making
of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the applicable 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 Administrative Agent for the account of
the applicable 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), then, without limiting the other provisions of this Agreement, such L/C
Issuer shall be entitled to recover from such Lender (acting through the
Administrative 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
applicable Overnight Rate from time to time in effect, plus any administrative,
processing or similar fees customarily charged by such L/C Issuer in connection
with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the
relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C
Issuer submitted to any Lender (through the Administrative 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 the applicable 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 Administrative 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
Administrative Agent), the Administrative Agent will distribute to such Lender
its Applicable Percentage thereof in Dollars and in the same funds as those
received by the Administrative Agent. 

    
(ii) If any
payment received by the Administrative Agent for the account of any L/C Issuer
pursuant to Section 2.03(c)(i) is required to be returned under any of the circumstances
described in Section 10.05 (including pursuant to any settlement entered into by such
L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent
for the account of such L/C Issuer its Applicable Percentage thereof on demand
of the Administrative 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 applicable Overnight Rate from time to time in effect. The obligations of
the Lenders under this clause shall survive the payment in full of the
Obligations and the termination of this Agreement. 


35









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

    
(ii) the
existence of any claim, counterclaim, setoff, 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
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) waiver
by the applicable L/C Issuer of any requirement that exists for such L/C
Issuer’s protection and not the protection of the Borrower or any waiver by such
L/C Issuer which does not in fact materially prejudice the Borrower; 

    
(v) honor
of a demand for payment presented electronically even if such Letter of Credit
requires that demand be in the form of a draft; 

    
(vi) any
payment made by the applicable L/C Issuer in respect of an otherwise complying
item presented after the date specified as the expiration date of, or the date
by which documents must be received under, such Letter of Credit if presentation
after such date is authorized by the UCC, the ISP or the UCP, as applicable;


    
(vii) any
payment by such L/C Issuer under such Letter of Credit against presentation of a
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; 

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

    
(ix) 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 applicable L/C
Issuer.


36 








The Borrower shall be conclusively
deemed to have waived any such claim against the applicable 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 applicable 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 any L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of any
L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
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 Issuer Document. 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 any L/C Issuer, the Administrative Agent, any of
their respective Related Parties nor any correspondent, participant or assignee
of any L/C Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (viii) 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 such 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. In
furtherance and not in limitation of the foregoing, an L/C Issuer 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 such L/C Issuer 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.
Each L/C Issuer may send a Letter of Credit or conduct any communication to or
from the beneficiary via the Society for Worldwide Interbank Financial
Telecommunication (“SWIFT”) message or overnight courier, or any other
commercially reasonable means of communicating with a beneficiary. 

    
(g) Applicability of ISP and UCP; Limitation of Liability. Unless otherwise expressly agreed by the applicable L/C
Issuer and the Borrower when a Letter of Credit is issued (including any such
agreement applicable to an Existing Letter of Credit), the rules of the ISP
shall apply to each standby Letter of Credit. Notwithstanding the foregoing, no
L/C Issuer shall be responsible to the Borrower for, and no L/C Issuer’s rights
and remedies against the Borrower shall be impaired by, any action or inaction
of such L/C Issuer required or permitted under any Law, order, or practice that
is required or permitted to be applied to any Letter of Credit or this
Agreement, including the Law or any order of a jurisdiction where such L/C
Issuer or the beneficiary is located, the practice stated in the ISP or UCP, as
applicable, or in the decisions, opinions, practice statements, or official
commentary of the ICC Banking Commission, the Bankers Association for Finance
and Trade - International Financial Services Association (BAFT-IFSA), or the
Institute of International Banking Law & Practice, whether or not any Letter
of Credit chooses such law or practice.


37









     (h) Letter of Credit Fees. The Borrower
shall pay to the Administrative Agent for the account of each Lender in
accordance, subject to adjustment as provided in Section 2.15, with its Applicable
Percentage, in Dollars, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit
equal to the Applicable Rate times the Dollar Equivalent of the
daily amount available to be drawn under such Letter of Credit. For purposes of
computing the daily amount available to be drawn under any Letter of Credit, the
amount of such Letter of Credit shall be determined in accordance with
Section 1.09. Letter of Credit Fees shall be (i) due and payable on the first
Business Day after the end 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 Expiration Date and thereafter on demand and
(ii) computed on a quarterly basis in arrears. If there is any change in the
Applicable Rate during any quarter, the daily amount available to be drawn under
each Letter of Credit shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the
request of the Required Lenders, while any Event of Default exists, all Letter
of Credit Fees shall accrue at the Default Rate. 

    
(i) Fronting Fee and Documentary and Processing Charges Payable to L/C
Issuer. The Borrower shall pay directly to
the applicable L/C Issuer for its own account, in Dollars, a fronting fee with
respect to each Letter of Credit, at the rate per annum specified in the
applicable Fee Letter, computed on the Dollar Equivalent of the daily amount
available to be drawn under such Letter of Credit on a quarterly basis in
arrears. Such fronting fee shall be due and payable on the tenth Business Day
after the end of each March, June, September and December in respect of the most
recently-ended quarterly period (or portion thereof, in the case of the first
payment), commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on
demand. For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.09. In addition, the Borrower shall pay directly to the
applicable L/C Issuer for its own account, in Dollars, 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 on demand and are nonrefundable. 

    
(j) Conflict with Issuer Documents. In the
event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control. 

    
(k) Reporting of Letter of Credit Information and L/C Issuer
Sublimit. At any time that any Person other
than the Person acting as Administrative Agent is an L/C Issuer, then (i) on the
last Business Day of each calendar month, (ii) on each date that a Letter of
Credit is amended, terminated or otherwise expires, (iii) on each date that an
L/C Credit Extension occurs with respect to any Letter of Credit, and (iv) upon
the request of the Administrative Agent, each L/C Issuer (or, in the case of
parts (ii), (iii) or (iv), the applicable L/C Issuer) shall deliver to the
Administrative Agent a report setting forth in form and detail reasonably
satisfactory to the Administrative Agent information (including, without
limitation, any reimbursement, Cash Collateral, or termination in respect of
Letters of Credit issued by such L/C Issuer) with respect to each Letter of
Credit issued by such L/C Issuer that is outstanding hereunder. In addition,
each L/C Issuer shall provide notice to the Administrative Agent of its L/C
Issuer Sublimit, or any change thereto, promptly upon it becoming a L/C Issuer
or making any change to its L/C Issuer Sublimit. No failure on the part of any
L/C Issuer to provide such information pursuant to this Section 2.03(k) shall limit
the obligation of the Borrower or any Lender hereunder with respect to its
reimbursement and participation obligations, respectively, pursuant to this
Section 2.03.


38








     2.04 Swing Line Loans.



     (a)
The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender, in reliance upon the agreements
of the other Lenders set forth in this Section 2.04, may in its sole discretion make loans in Dollars (each such loan,
a “Swing Line Loan”) to the Borrower 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 the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations
of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided, however, that (x)
after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the
Revolving Credit Exposure of any Lender shall not exceed such Lender’s Commitment, (y) the Borrower shall not use the proceeds
of any Swing Line Loan to refinance any outstanding Swing Line Loan, and (z) the Swing Line Lender shall not be under any obligation
to make any Swing Line Loan if it shall determine (which determination shall be conclusive and binding absent manifest error)
that it has, or by such Credit Extension may have, Fronting Exposure. Within the foregoing limits, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.04, prepay under Section 2.05, and reborrow
under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan,
each Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such Lender’s Applicable Percentage times the
amount of such Swing Line Loan. 

    
(b) Borrowing Procedures. Each Swing Line
Borrowing shall be made upon the Borrower’s irrevocable notice to the Swing Line
Lender and the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i)
the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the
requested borrowing date, which shall be a Business Day. Each such telephonic
notice must be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the first
proviso to the first sentence of Section
2.04(a), or (B) that one or more of the
applicable conditions specified in Article
IV is not then satisfied, then, subject to
the terms and conditions hereof, the Swing Line Lender will, not later than 3:00
p.m. on the borrowing date specified in such Swing Line Loan Notice, make the
amount of its Swing Line Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in
Same Day Funds. 




39









    
(c) Refinancing of Swing Line Loans.


    
(i) The
Swing Line Lender at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Lender make a Base Rate Committed Loan in an
amount equal to such Lender’s Applicable
Percentage of the amount of Swing Line Loans then outstanding. Such request
shall be made in writing (which written request shall be deemed to be a
Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans, but subject to the
unutilized portion of the Aggregate Commitments and the conditions set forth in
Section 4.02. The Swing Line Lender shall furnish the Borrower with a copy of the
applicable Committed Loan Notice promptly after delivering such notice to the
Administrative Agent. Each Lender shall make an amount equal to its Applicable
Percentage of the amount specified in such Committed Loan Notice available to
the Administrative Agent in Same Day Funds (and the Administrative Agent may
apply Cash Collateral available with respect to the applicable Swing Line Loan)
for the account of the Swing Line Lender at the Administrative Agent’s Office
for Dollar-denominated payments not later than 1:00 p.m. on the day specified in
such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Committed Loan
to the Borrower in such amount. The Administrative Agent shall remit the funds
so received to the Swing Line Lender. 

     (ii) If for
any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section
2.04(c)(i), the request for Base Rate
Committed Loans submitted by the Swing Line Lender as set forth herein shall be
deemed to be a request by the Swing Line Lender that each of the Lenders fund
its risk participation in the relevant Swing Line Loan and each Lender’s payment
to the Administrative Agent for the account of the Swing Line Lender pursuant to
Section 2.04(c)(i) shall be deemed payment in respect of such participation. 

    
(iii) If
any Lender fails to make available to the Administrative Agent for the account
of the Swing Line Lender any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section
2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender
(acting through the Administrative 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 the Swing Line Lender at a rate
per annum equal to the applicable Overnight Rate from time to time in effect,
plus any administrative, processing or similar fees customarily charged by the
Swing Line Lender in connection with the foregoing. If such Lender pays such
amount (with interest and fees as aforesaid), the amount so paid shall
constitute such Lender’s Committed Loan included in the relevant Committed
Borrowing or funded participation in the relevant Swing Line Loan, as the case
may be. A certificate of the Swing Line Lender submitted to any Lender (through
the Administrative Agent) with respect to any amounts owing under this
clause (iii) shall be conclusive absent manifest error. 

    
(iv) Each
Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, the Borrower or any other Person for any
reason whatsoever, (B) the occurrence or continuance of a Default, 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 Committed Loans pursuant to this
Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk
participations shall relieve or otherwise impair
the obligation of the Borrower to repay Swing Line Loans, together with interest
as provided herein. 

40









     (d) Repayment of Participations.




    
(i) At any
time after any Lender has purchased and funded a risk participation in a Swing
Line Loan, if the Swing Line Lender receives any payment on account of such
Swing Line Loan, the Swing Line Lender will distribute to such Lender its
Applicable Percentage thereof in the same funds as those received by the Swing
Line Lender. 

    
(ii) If any
payment received by the Swing Line Lender in respect of principal or interest on
any Swing Line Loan is required to be returned by the Swing Line Lender under
any of the circumstances described in Section
10.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the applicable
Overnight Rate. The Administrative Agent will make such demand upon the request
of the Swing Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this
Agreement. 


    
(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Borrower
for interest on the Swing Line Loans. Until each Lender funds its Base Rate
Committed Loan or risk participation pursuant to this Section 2.04 to refinance such
Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of
such Applicable Percentage shall be solely for the account of the Swing Line
Lender. 

    
(f) Payments Directly to Swing Line Lender. The Borrower shall make all payments of principal and interest in
respect of the Swing Line Loans directly to the Swing Line Lender.


    
2.05 Prepayments. (a) The
Borrower may, upon notice to the Administrative Agent, at any time or from time
to time voluntarily prepay Committed Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Administrative
Agent not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) four Business
Days (or five, in the case of prepayment of Loans denominated in Special Notice
Currencies) prior to any date of prepayment of Eurocurrency Rate Loans
denominated in Alternative Currencies, and (C) on the date of prepayment of Base
Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof (or the Alternative Currency Equivalent thereof); and (iii) any
prepayment of Base Rate Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then outstanding. Each such notice
shall specify the date and amount of such prepayment and the Type(s) of
Committed Loans to be prepaid and, if Eurocurrency Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. The Administrative Agent will promptly
notify each Lender of its receipt of each such notice, and of the amount of such
Lender’s Applicable Percentage of such prepayment. If such notice is given by
the Borrower, the applicable Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurocurrency Rate Loan shall be accompanied by all
accrued interest on the amount prepaid, together with any additional amounts
required pursuant to Section
3.05. Subject to Section 2.15, each such prepayment
shall be applied to the Committed Loans of the
Lenders in accordance with their respective Applicable Percentages. 

41








     (b) The
Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay
Swing Line Loans in whole or in part without premium or penalty; provided that (i) such
notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the date of the prepayment, and (ii) any such
prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount 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.


    
(c) If the
Administrative Agent notifies the Borrower at any time that the Total
Outstandings at such time exceed an amount equal to 105% of the Aggregate
Commitments then in effect, then, within two Business Days after receipt of such
notice, the Borrower shall prepay Loans and/or the Borrower shall Cash
Collateralize the L/C Obligations in an aggregate amount at least equal to such
excess; provided, however, that, subject to the provisions of Section 2.14(a), the Borrower shall
not be required to Cash Collateralize the L/C Obligations pursuant to this
Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings
exceed the Aggregate Commitments then in effect. The Administrative Agent may,
at any time and from time to time after the initial deposit of such Cash
Collateral, request that additional Cash Collateral be provided in order to
protect against the results of exchange rate fluctuations. 

    
(d) If the
Administrative Agent notifies the Borrower at any time that the Outstanding
Amount of all Loans denominated in Alternative Currencies at such time exceeds
an amount equal to 105% of the Alternative Currency Sublimit then in effect,
then, within two Business Days after receipt of such notice, the Borrower shall
prepay Loans 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 Alternative
Currency Sublimit then in effect. 


    
2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent,
terminate the Aggregate Commitments, or from time to time permanently reduce the
Aggregate Commitments; provided that (a) any such notice shall be received by
the Administrative Agent not later than 11:00 a.m. five Business Days prior to
the date of termination or reduction, (b) 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, (c) 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
(d) if, after giving effect to any reduction of the Aggregate Commitments, the
Alternative Currency Sublimit, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be
automatically reduced by the amount of such excess. The Administrative Agent
will promptly notify the Lenders of any such notice of termination or reduction
of the Aggregate Commitments. The amount of any such Aggregate Commitment
reduction shall not be applied to the Alternative Currency Sublimit, the Letter
of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the
Borrower or unless required by proviso
(d) of the preceding sentence. Any reduction
of the Aggregate Commitments shall be applied to the Commitment of each Lender
according to its Applicable Percentage. All fees accrued until the effective
date of any termination of the Aggregate Commitments shall be paid on the
effective date of such termination. 

    
2.07 Repayment of Loans.
(a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate
principal amount of Committed Loans made to the Borrower outstanding on such
date.

42









     (b) The Borrower shall repay each Swing Line Loan on the earlier to occur of
(i) the date ten Business Days after such Loan is made and (ii) the Maturity
Date. 

    
2.08 Interest. (a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency
Rate Loan shall bear interest on the outstanding principal amount thereof for
each Interest Period at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Rate plus (in the case of a Eurocurrency
Rate Loan of any Lender which is lent from a Lending Office in the United
Kingdom or a Participating Member State) the Mandatory Cost; (ii) each Base Rate
Committed 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
plus the Applicable Rate; and (iii) each Swing Line 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 plus the Applicable Rate. 

     (b)
(i) If any amount (including principal of any
Loan, interest, fees or any other amount) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods),
whether at stated maturity, by acceleration or otherwise, then 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.


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

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

     (a)
Commitment Fee. The Borrower shall pay to the Administrative Agent for the account of
each Lender in accordance with its Applicable Percentage, a commitment fee in
Dollars equal to the Applicable Rate times the actual daily amount by which the
Aggregate Commitments exceed the sum of (i) the Outstanding Amount of Committed
Loans and (ii) the Outstanding Amount of L/C Obligations, subject to adjustment
as provided in Section 2.15. For the avoidance of doubt, the Outstanding Amount of Swing
Line Loans shall not be counted towards or considered usage of the Aggregate
Commitments for purposes of determining the commitment fee. The commitment fee
shall accrue at all times during the Availability Period, 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 the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the last day of the Availability Period. The commitment
fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed
and multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect. 


43 







     (b)
Other Fees.
(i) The
Borrower shall pay to the Arranger and the Administrative Agent for their own
respective accounts, in Dollars, fees in the amounts and at the times specified
in the Fee Letter. 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, in Dollars, 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. 

    
2.10 Computation of Interest and Fees. All computations of interest for Base Rate Loans (including
Base Rate Loans determined by reference to the Eurocurrency 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) , or, in the case of interest in respect of Committed Loans denominated in
Alternative Currencies as to which market practice differs from the foregoing,
in accordance with such market practice. 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 2.12(a), bear interest for one day. Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error. 

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

     (b)
In addition to the accounts and records referred
to in subsection (a) above, each Lender and the Administrative 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 and
Swing Line Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any
Lender in respect of such matters, the accounts and records of the
Administrative Agent shall control in the absence of manifest error. 

44 







    
2.12 Payments Generally; Administrative Agent’s
Clawback. (a) General. All payments to be made by
the Borrower shall be made free and clear of and without condition or deduction
for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein and except with respect to principal of and interest
on Loans denominated in an Alternative Currency, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the applicable
Administrative Agent’s Office in Dollars and in Same Day Funds not later than
2:00 p.m. on the date specified herein. Except as otherwise expressly provided
herein, all payments by the Borrower hereunder with respect to principal and
interest on Loans denominated in an Alternative Currency shall be made to the
Administrative Agent, for the account of the respective Lenders to which such
payment is owed, at the applicable Administrative Agent’s Office in
such Alternative Currency and in Same Day
Funds not later than the Applicable Time specified by the Administrative Agent
on the dates specified herein. Without limiting the generality of the foregoing,
the Administrative Agent may require that any payments due under this Agreement
be made in the United States. If, for any reason, the Borrower is prohibited by
any Law from making any required payment hereunder in an Alternative Currency,
the Borrower shall make such payment in Dollars in the Dollar Equivalent of the
Alternative Currency payment amount. The Administrative Agent will promptly
distribute to each Lender its Applicable 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 Administrative
Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the
Applicable Time specified by the Administrative Agent in the case of payments in
an Alternative Currency, shall in each case be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue. 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. 

     (b)
(i) Funding by
Lenders; Presumption by Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender prior
to the proposed date of any Committed Borrowing of Eurocurrency Rate Loans (or,
in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon
on the date of such Committed Borrowing) that such Lender will not make
available to the Administrative Agent such Lender’s share of such Committed
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or, in the case of a
Committed Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by Section 2.02) and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Committed Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount in Same Day Funds with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender,
the Overnight Rate, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by the Borrower, the
interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable Committed Borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lender’s
Committed Loan included in such Committed Borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Administrative Agent.


     (ii)
Payments by Borrower; Presumptions by
Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for the account of
the Lenders or the applicable L/C Issuer hereunder that the Borrower will not
make such payment, the Administrative Agent may assume that the Borrower has
made such payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or such L/C Issuer, as the case may
be, the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the applicable L/C Issuer, as the case may
be, severally agrees to repay to the Administrative Agent forthwith on demand
the amount so distributed to such Lender or such L/C Issuer, in Same Day Funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the Overnight Rate. 

45 







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

     (c)
Failure to Satisfy Conditions
Precedent. If any Lender makes available to
the Administrative Agent funds for any Loan to be made by such Lender to the
Borrower as provided in the foregoing provisions of this Article II, and such funds
are not made available to the Borrower by the Administrative 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 Administrative
Agent shall return such funds (in like funds as received from such Lender) to
such Lender, without interest. 

     (d)
Obligations of Lenders Several. The obligations of the Lenders hereunder to make Committed
Loans, to fund participations in Letters of Credit and Swing Line Loans and to
make payments pursuant to Section
10.04(c) are several and not joint. The
failure of any Lender to make any Committed Loan, to fund any such participation
or to make any payment under Section
10.04(c) 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 Committed Loan, to purchase its participation or to make its payment
under Section 10.04(c). 

     (e)
Funding Source. 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. 

    
2.13 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of the Committed Loans made by it, or the participations in L/C
Obligations or in Swing Line Loans held by it resulting in such Lender’s
receiving payment of a proportion of the aggregate amount of such Committed
Loans or participations and accrued interest thereon greater than its
pro
rata share
thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Committed Loans and subparticipations
in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Committed Loans and
other amounts owing them, provided that: 

     (i)
if any such participations or subparticipations
are purchased and all or any portion of the payment giving rise thereto is
recovered, such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest; and


     (ii)
the provisions of this Section shall not be
construed to apply to (x) any payment made by or on behalf of the Borrower
pursuant to and in accordance with the express terms of this Agreement
(including the application of funds arising from the existence of a Defaulting
Lender), (y) the application of Cash Collateral provided for in Section 2.14, or (z) any
payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or
subparticipations in L/C Obligations or Swing Line Loans to any assignee or
participant, other than an assignment to the Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply). 

46 







     The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


    
2.14 Cash Collateral.


     (a)
Certain Credit Support Events. If (i) 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, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation
for any reason remains outstanding, (iii) the Borrower shall be required to
provide Cash Collateral pursuant to Section
8.02(c), or (iv) there shall exist a
Defaulting Lender, the Borrower shall immediately (in the case of
clause (iii) above) or within one Business Day (in all other cases) following any
request by the Administrative Agent or the applicable L/C Issuer, provide Cash
Collateral in an amount not less than the applicable Minimum Collateral Amount
(determined in the case of Cash Collateral provided pursuant to clause (iv) above, after
giving effect to Section
2.15(a)(iv) and any Cash Collateral provided
by the Defaulting Lender). Additionally, if the Administrative Agent notifies
the Borrower at any time that the Outstanding Amount of all L/C Obligations at
such time exceeds 105% of the Letter of Credit Sublimit then in effect, then,
within two Business Days after receipt of such notice, the Borrower shall
provide Cash Collateral for the Outstanding Amount of the L/C Obligations in an
amount not less than the amount by which the Outstanding Amount of all L/C
Obligations exceeds the Letter of Credit Sublimit. 

     (b)
Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting
Lender, such Defaulting Lender, hereby grants to (and subjects to the control
of) the Administrative Agent, for the benefit of the Administrative Agent, each
L/C Issuer and the Lenders, and agrees to maintain, a first priority security
interest in all such cash, deposit accounts and all balances therein, and all
other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral
may be applied pursuant to Section
2.14(c). If at any time the Administrative
Agent determines that Cash Collateral is subject to any right or claim of any
Person other than the Administrative Agent or each L/C Issuer as herein
provided, or that the total amount of such Cash Collateral is less than the
Minimum Collateral Amount, the Borrower will, promptly upon demand by the
Administrative Agent, pay or provide to the Administrative Agent additional Cash
Collateral in an amount sufficient to eliminate such deficiency. All Cash
Collateral (other than credit support not constituting funds subject to deposit)
shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America. The Borrower shall pay on demand therefor from time to time all
customary account opening, activity and other administrative fees and charges in
connection with the maintenance and disbursement of Cash Collateral. 

     (c)
Application. Notwithstanding anything to the contrary contained in this Agreement,
Cash Collateral provided under any of this Section 2.14 or Sections 2.03,
2.05,
2.15 or
8.02 in
respect of Letters of Credit shall be held and applied to the satisfaction of
the specific L/C Obligations, obligations to fund participations therein
(including, as to Cash Collateral provided by a Defaulting Lender, any interest
accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may otherwise be provided for herein.


47 







     (d) Release. Cash Collateral (or the
appropriate portion thereof) provided to reduce Fronting Exposure or to secure
other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto
(including by the termination of Defaulting Lender status of the applicable
Lender (or, as appropriate, its assignee following compliance with
Section 10.06(b)(vi))) or (ii) the determination by the Administrative Agent and
the applicable L/C Issuer that there exists excess Cash Collateral;
provided,
however,
the Person providing Cash Collateral and the applicable L/C Issuer may agree
that Cash Collateral shall not be released but instead held to support future
anticipated Fronting Exposure or other obligations. 

    
2.15 Defaulting Lenders.


     (a)
Adjustments. Notwithstanding anything to the contrary contained in this Agreement,
if any Lender becomes a Defaulting Lender, then, until such time as that Lender
is no longer a Defaulting Lender, to the extent permitted by applicable Law:


     (i)
Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any
amendment, waiver or consent with respect to this Agreement shall be restricted
as set forth in the definition of “Required Lenders” and Section 10.01. 

     (ii)
Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts
received by the Administrative Agent for the account of such Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise)
or received by the Administrative Agent from a Defaulting Lender pursuant to
Section 10.08 shall be applied at such time or times as may be determined by the
Administrative Agent as follows: first, to the payment of any amounts owing by
such Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by such Defaulting Lender to
the L/C Issuers or Swing Line Lender hereunder; third, to Cash Collateralize the
L/C Issuers’ Fronting Exposure with respect to such Defaulting Lender in
accordance with Section 2.14; fourth, as the Borrower may request (so long as no Default
exists), to the funding of any Loan in respect of which such Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as
determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a deposit account and
released pro rata in order to (x) satisfy such Defaulting Lender’s potential
future funding obligations with respect to Loans under this Agreement and (y)
Cash Collateralize the L/C Issuers’ future Fronting Exposure with respect to
such Defaulting Lender with respect to future Letters of Credit issued under
this Agreement, in accordance with Section
2.14; sixth, to the payment of any amounts
owing to the Lenders, the L/C Issuers or Swing Line Lender as a result of any
judgment of a court of competent jurisdiction obtained by any Lender, any L/C
Issuer or the Swing Line Lender against such Defaulting Lender as a result of
such Defaulting Lender’s breach of its obligations under this Agreement;
seventh, so long as no Default exists, to the payment of any amounts owing to
the Borrower as a result of any judgment of a court of competent jurisdiction
obtained by the Borrower against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; and eighth,
to such Defaulting Lender or as otherwise directed by a court of competent
jurisdiction; provided that if (x) such payment is a payment of the principal amount
of any Loans or L/C Borrowings in respect of which such
Defaulting Lender has not fully funded its appropriate share, and (y) such Loans
were made or the related Letters of Credit were issued at a time when the
conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to
pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a
pro rata basis prior to being applied to the payment of any Loans of, or L/C
Obligations owed to, such Defaulting Lender until such time as all Loans and
funded and unfunded participations in L/C Obligations and Swing Line Loans are
held by the Lenders pro rata in accordance with the Commitments hereunder
without giving effect to Section
2.15(a)(iv). Any payments, prepayments or other
amounts paid or payable to a Defaulting Lender that are applied (or held) to pay
amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this
Section 2.15(a)(ii) shall
be deemed paid to and redirected by such Defaulting Lender, and each Lender
irrevocably consents hereto. 

48 







     (iii) Certain Fees. 

     (A)
No Defaulting Lender shall be entitled to receive
any fee payable under Section
2.09(a) for any period during which that
Lender is a Defaulting Lender (and the Borrower shall not be required to pay any
such fee that otherwise would have been required to have been paid to that
Defaulting Lender). 

     (B)
Each Defaulting Lender shall be entitled to
receive Letter of Credit Fees for any period during which that Lender is a
Defaulting Lender only to the extent allocable to its Applicable Percentage of
the stated amount of Letters of Credit for which it has provided Cash Collateral
pursuant to Section 2.14. 

     (C)
With respect to any Letter of Credit Fee not
required to be paid to any Defaulting Lender pursuant to clause (A) or
(B) above,
the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any
such fee otherwise payable to such Defaulting Lender with respect to such
Defaulting Lender’s participation in L/C Obligations that has been reallocated
to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the
applicable L/C Issuer the amount of any such fee otherwise payable to such
Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure
to such Defaulting Lender, and (z) not be required to pay the remaining amount
of any such fee. 

     (iv)
Reallocation of Applicable Percentages to
Reduce Fronting Exposure. All or any part of
such Defaulting Lender’s participation in L/C Obligations and Swing Line Loans
shall be reallocated among the Non-Defaulting Lenders in accordance with their
respective Applicable Percentages (calculated without regard to such Defaulting
Lender’s Commitment) but only to the extent that (x) the conditions set forth in
Section 4.02 are
satisfied at the time of such reallocation (and, unless the Borrower shall have
otherwise notified the Administrative Agent at such time, the Borrower shall be
deemed to have represented and warranted that such conditions are satisfied at
such time), and (y) such reallocation does not cause the aggregate Revolving
Credit Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting
Lender’s Commitment. No reallocation hereunder shall constitute a waiver or
release of any claim of any party hereunder against a Defaulting Lender arising
from that Lender having become a Defaulting Lender, including any claim of a
Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased
exposure following such reallocation. 

49 







     (v) Cash Collateral, Repayment of Swing Line Loans. If the reallocation described in clause (a)(iv) above cannot, or can
only partially, be effected, the Borrower shall, without prejudice to any right
or remedy available to it hereunder or under applicable Law, (x) first, prepay
Swing Line Loans in an amount equal to the Swing Line Lenders’ Fronting Exposure
and (y) second, Cash Collateralize the L/C Issuers’ Fronting Exposure in
accordance with the procedures set forth in Section 2.14. 

     (b)
Defaulting Lender Cure. If the Borrower, the Administrative Agent, Swing Line Lender
and each L/C Issuer agree in writing that a Lender is no longer a Defaulting
Lender, the Administrative Agent will so notify the parties hereto, whereupon as
of the effective date specified in such notice and subject to any conditions set
forth therein (which may include arrangements with respect to any Cash
Collateral), that Lender will, to the extent applicable, purchase at par that
portion of outstanding Loans of the other Lenders or take such other actions as
the Administrative Agent may determine to be necessary to cause the Committed
Loans and funded and unfunded participations in Letters of Credit and Swing Line
Loans to be held on a pro rata basis by the Lenders in accordance with their
Applicable Percentages (without giving effect to Section 2.15(a)(iv)), whereupon such
Lender will cease to be a Defaulting Lender; provided that no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf
of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the
extent otherwise expressly agreed by the affected parties, no change hereunder
from Defaulting Lender to Lender will constitute a waiver or release of any
claim of any party hereunder arising from that Lender’s having been a Defaulting
Lender. 

ARTICLE III. 
TAXES, YIELD PROTECTION AND ILLEGALITY 

    
3.01 Taxes. 

     (a)
Payments Free of Taxes; Obligation to
Withhold; Payments on Account of Taxes. (i)
Any and all payments by or on account of any obligation of the Borrower under
any Loan Document shall be made without deduction or withholding for any Taxes,
except as required by applicable Laws. If any applicable Laws (as determined in
the good faith discretion of the Administrative Agent or the Borrower, as
applicable) require the deduction or withholding of any Tax from any such
payment by the Administrative Agent or the Borrower, then the Administrative
Agent or the Borrower shall be entitled to make such deduction or withholding,
upon the basis of the information and documentation to be delivered pursuant to
subsection (e) below.


     (ii)
If the Borrower or the Administrative Agent shall
be required by the Code to withhold or deduct any Taxes, including both United
States Federal backup withholding and withholding taxes, from any payment, then
(A) the Administrative Agent shall withhold or make such deductions as are
determined by the Administrative Agent to be required based upon the information
and documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Code, and (C) to the
extent that the withholding or deduction is made on account of Indemnified
Taxes, the sum payable by the Borrower shall be increased as necessary so that
after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this
Section 3.01) the applicable Recipient receives an amount equal to the sum it would
have received had no such withholding or deduction been made. 

50 







     (iii) If the Borrower or the Administrative Agent shall be required by any
applicable Laws other than the Code to withhold or deduct any Taxes from any
payment, then (A) the Borrower or the Administrative Agent, as required by such
Laws, shall withhold or make such deductions as are determined by it to be
required based upon the information and documentation it has received pursuant
to subsection (e) below, (B) the Borrower or the Administrative Agent, to the extent
required by such Laws, shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with such Laws, and (C) to the
extent that the withholding or deduction is made on account of Indemnified
Taxes, the sum payable by the Borrower shall be increased as necessary so that
after any required withholding or the making of all required deductions
(including deductions applicable to additional sums payable under this
Section 3.01) the applicable Recipient receives an amount equal to the sum it would
have received had no such withholding or deduction been made. 

     (b)
Payment of Other Taxes by the
Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay to the relevant Governmental
Authority in accordance with applicable law, or at the option of the
Administrative Agent timely reimburse it for the payment of, any Other Taxes.


     (c)
Tax Indemnifications. (i) The Borrower shall, and does hereby, indemnify each
Recipient, and shall make payment in respect thereof within 10 days after demand
therefor, for the full amount of any Indemnified Taxes (including Indemnified
Taxes imposed or asserted on or attributable to amounts payable under this
Section 3.01) payable or paid by such Recipient or required to be withheld or
deducted from a payment to such Recipient (other than any amounts arising as a
result of the gross negligence or willful misconduct of such Recipient), and any
reasonable out of pocket expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or an L/C
Issuer (with a copy to the Administrative Agent), or by the Administrative Agent
on its own behalf or on behalf of a Lender or an L/C Issuer, accompanied by
reasonable supporting documentation shall be conclusive absent manifest error.
The Borrower shall, and does hereby, indemnify the Administrative Agent, and
shall make payment in respect thereof within 10 days after demand therefor, for
any amount which a Lender or an L/C Issuer for any reason fails to pay
indefeasibly to the Administrative Agent as required pursuant to Section 3.01(c)(ii) below.


     (ii)
Each Lender and each L/C Issuer shall, and does
hereby, severally indemnify, and shall make payment in respect thereof within 10
days after demand therefor, (x) the Administrative Agent against any Indemnified
Taxes attributable to such Lender or such L/C Issuer (but only to the extent
that the Borrower has not already indemnified the Administrative Agent for such
Indemnified Taxes and without limiting the obligation of the Borrower to do so),
(y) the Administrative Agent and the Borrower, as applicable, against any Taxes
attributable to such Lender’s failure to comply with the provisions of
Section 10.06(d) relating to the maintenance of a Participant Register and (z) the
Administrative Agent and the Borrower, as applicable, against any Excluded Taxes
attributable to such Lender or such L/C Issuer, in each case, that are payable
or paid by the Administrative Agent or the Borrower in connection with any Loan
Document, and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of such payment
or liability delivered to any Lender by the Administrative Agent shall be
conclusive absent manifest error. Each Lender and
each L/C Issuer hereby authorizes the Administrative Agent to set off and apply
any and all amounts at any time owing to such Lender or such L/C Issuer, as the
case may be, under this Agreement or any other Loan Document against any amount
due to the Administrative Agent under this clause
(ii).  

51 







     (d) Evidence of Payments. Upon request by the
Borrower or the Administrative Agent, as the case may be, after any payment of
Taxes by the Borrower or by the Administrative Agent to a Governmental Authority
as provided in this Section
3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower,
as the case may be, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of any return required by
Laws to report such payment or other evidence of such payment reasonably
satisfactory to the Borrower or the Administrative Agent, as the case may be.


     (e)
Status of Lenders; Tax
Documentation. (i) Any Lender that is
entitled to an exemption from or reduction of withholding Tax with respect to
payments made under any Loan Document shall deliver to the Borrower and the
Administrative Agent, at the time or times reasonably requested by the Borrower
or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law or the taxing authorities of a jurisdiction
pursuant to such applicable law or reasonably requested by the Borrower or the
Administrative Agent as will permit such payments to be made without withholding
or at a reduced rate of withholding. In addition, any Lender, if reasonably
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements. Notwithstanding
anything to the contrary in the preceding two sentences, the completion,
execution and submission of such documentation (other than such documentation
either (A) set forth in Section
3.01(e)(ii)(A), (ii)(B) and (ii)(D) below or (B) required by
applicable law other than the Code or the taxing authorities of the jurisdiction
pursuant to such applicable law to comply with the requirements for exemption or
reduction of withholding tax in that jurisdiction) shall not be required if in
the Lender’s reasonable judgment such completion, execution or submission would
subject such Lender to any material unreimbursed cost or expense or would
materially prejudice the legal or commercial position of such Lender.


     (ii)
Without limiting the generality of the foregoing,
in the event that a Borrower is a U.S. Person, 

     (A)
any Lender that is a U.S. Person shall deliver to
the Borrower and the Administrative Agent on or prior to the date on which such
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the reasonable request of the Borrower or the Administrative Agent),
executed originals of IRS Form W-9 (or applicable successor form) certifying
that such Lender is exempt from U.S. federal backup withholding tax; 


52 







     (B)
any Foreign Lender shall, to the extent it is
legally entitled to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable: 

     (I) in the case of a Foreign Lender claiming the benefits of an income tax
treaty to which the United States is a party (x) with respect to payments of
interest under any Loan Document, executed originals of IRS Form W-8BEN (or
applicable successor form) establishing an exemption from, or reduction of, U.S.
federal withholding Tax pursuant to the “interest” article of such tax treaty
and (y) with respect to any other applicable payments under any Loan Document,
IRS Form W-8BEN (or applicable successor form) establishing an exemption from,
or reduction of, U.S. federal withholding Tax pursuant to the “business profits”
or “other income” article of such tax treaty; 

     (II)
executed originals of IRS Form W-8ECI (or
applicable successor form); 

     (III)
in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under Section 881(c) of the
Code, (x) a certificate substantially in the form of Exhibit F-1 to the effect that such
Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the
Code, a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y)
executed originals of IRS Form W-8BEN (or applicable successor form); or


     (IV)
to the extent a Foreign Lender is not the
beneficial owner, executed originals of IRS Form W-8IMY (or applicable successor
form), accompanied by IRS Form W-8ECI (or applicable successor form), IRS Form
W-8BEN (or applicable successor form), a U.S. Tax Compliance Certificate
substantially in the form of Exhibit
F-2 or Exhibit F-3, IRS Form W-9 (or
applicable successor form), and/or other certification documents from each
beneficial owner, as applicable; provided that if the Foreign Lender is
a partnership and one or more direct or indirect partners of such Foreign Lender
are claiming the portfolio interest exemption, such Foreign Lender may provide a
U.S. Tax Compliance Certificate substantially in the form of Exhibit F-4 on behalf of
each such direct and indirect partner; 

     (C)
any Foreign Lender shall, to the extent it is
legally entitled to do so, deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement (and
from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in U.S.
federal withholding Tax, duly completed, together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower or
the Administrative Agent to determine the withholding or deduction required to
be made; and 

53 







     (D)
if a payment made to a Lender under any Loan
Document would be subject to U.S. federal withholding Tax imposed by FATCA if
such Lender were to fail to comply with the applicable reporting requirements of
FATCA (including those contained in Section
1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the
Borrower and the Administrative Agent at the time or times prescribed by law and
at such time or times reasonably requested by the Borrower or the Administrative
Agent such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
reasonably requested by the Borrower or the Administrative Agent as may be
necessary for the Borrower and the Administrative Agent to comply with their
obligations under FATCA and to determine that such Lender has complied with such
Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall
include any amendments made to FATCA after the date of this Agreement.


     (iii)
Each Lender agrees that if any form or
certification it previously delivered pursuant to this Section 3.01 expires or
becomes obsolete or inaccurate in any respect, it shall update such form or
certification or promptly notify the Borrower and the Administrative Agent in
writing of its legal inability to do so. 

     (f)
Treatment of Certain Refunds. Unless required by applicable Laws, at no time shall the Administrative Agent have any obligation
to file for or otherwise pursue on behalf of a Lender or an L/C Issuer, or have any obligation to pay to any Lender or any L/C
Issuer, any refund of Taxes withheld or deducted from funds paid for the account of such Lender or such L/C Issuer, as the case
may be. If any Recipient determines, in its reasonable discretion, that it has received a refund of any Taxes as to which
it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section
3.01, it shall pay to the Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including Taxes) incurred by such Recipient, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided that the Borrower, upon the request of the Recipient,
agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Recipient in the event the Recipient is required to repay such refund to such Governmental Authority. Notwithstanding
anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Borrower
pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such
Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld
or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This
subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person. 

     (g)
Survival.
Each party’s obligations under this Section
3.01 shall survive the resignation or
replacement of the Administrative Agent or any assignment of rights by, or the
replacement of, a Lender or L/C Issuer, the termination of the Commitments and
the repayment, satisfaction or discharge of all other Obligations. 

54 







    
3.02 Illegality. If any Law
has made it unlawful, or any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or
fund Loans whose interest is determined by reference to the Eurocurrency Rate
(whether denominated in Dollars or an Alternative Currency), or to determine or
charge interest rates based upon the Eurocurrency Rate, or any Governmental Authority has imposed material restrictions
on the authority of such Lender to purchase or sell, or to take deposits of,
Dollars or any Alternative Currency in the applicable interbank market, then, on
notice thereof by such Lender to the Borrower through the Administrative Agent,
(i) any obligation of such Lender to make or continue Eurocurrency Rate Loans in
the affected currency or currencies or, in the case of Eurocurrency Rate Loans
in Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans,
shall be suspended, and (ii) if such notice asserts the illegality of such
Lender making or maintaining Base Rate Loans the interest rate on which is
determined by reference to the Eurocurrency Rate component of the Base Rate, the
interest rate on which Base Rate Loans of such Lender shall, if necessary to
avoid such illegality, be determined by the Administrative Agent without
reference to the Eurocurrency Rate component of the Base Rate, in each case
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, (x) the Borrower shall, upon demand from such Lender (with a copy
to the Administrative Agent), prepay or, if applicable and such Loans are
denominated in Dollars, convert all Eurocurrency Rate Loans of such Lender to
Base Rate Loans (the interest rate on which Base Rate Loans of such Lender
shall, if necessary to avoid such illegality, be determined by the
Administrative Agent without reference to the Eurocurrency Rate component of the
Base Rate), either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such
day, or immediately, if such Lender may not lawfully continue to maintain such
Eurocurrency Rate Loans and (y) if such notice asserts the illegality of such
Lender determining or charging interest rates based upon the Eurocurrency Rate,
the Administrative Agent shall during the period of such suspension compute the
Base Rate applicable to such Lender without reference to the Eurocurrency Rate
component thereof until the Administrative Agent is advised in writing by such
Lender that it is no longer illegal for such Lender to determine or charge
interest rates based upon the Eurocurrency Rate. Upon any such prepayment or
conversion, the Borrower shall also pay accrued interest on the amount so
prepaid or converted. 

    
3.03 Inability to Determine Rates. If in connection with any request for a Eurocurrency Rate Loan or a
conversion to or continuation thereof, (a) the Administrative Agent determines
that (i) deposits (whether in Dollars or an Alternative Currency) are not being
offered to banks in the applicable offshore interbank market for such currency
for the applicable amount and Interest Period of such Eurocurrency Rate Loan, or
(ii) adequate and reasonable means do not exist for determining the Eurocurrency
Rate for any requested Interest Period with respect to a proposed Eurocurrency
Rate Loan (whether denominated in Dollars or an Alternative Currency) or in
connection with an existing or proposed Base Rate Loan, or (b) the Required
Lenders determine that for any reason the Eurocurrency Rate for any requested
Interest Period with respect to a proposed Eurocurrency Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such
Eurocurrency Rate Loan, the Administrative Agent will promptly so notify the
Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make
or maintain Eurocurrency Rate Loans in the affected currency or currencies shall
be suspended (to the extent of the affected Eurocurrency Rate Loans or Interest
Periods), and (y) in the event of a determination described in the preceding
sentence with respect to the Eurocurrency Rate component of the Base Rate, the
utilization of the Eurocurrency Rate component in determining the Base Rate
shall be suspended, in each case until the Administrative 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 Eurocurrency Rate Loans in the affected
currency or currencies (to the extent of the affected Eurocurrency Rate Loans or
Interest Periods) or, failing that, will be deemed to have converted such
request into a request for a Committed Borrowing of Base Rate Loans in the
amount specified therein. 

55 







    
3.04 Increased Costs; Reserves on Eurocurrency Rate
Loans. 

     (a)
Increased Costs Generally. If any Change in Law shall:

     (i)
impose, modify or deem applicable any reserve,
special deposit, compulsory loan, insurance charge or similar requirement
against assets of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except (A) any reserve requirement contemplated
by Section 3.04(e) and (B) the requirements of the Bank of England and the Financial
Services Authority or the European Central Bank reflected in the Mandatory Cost,
other than as set forth below) or any L/C Issuer; 

     (ii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B)
Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income
Taxes) on its loans, loan principal, letters of credit, commitments, or other
obligations, or its deposits, reserves, other liabilities or capital
attributable thereto; or; 

     (iii) result in the failure of the Mandatory Cost, as calculated hereunder, to
represent the cost to any Lender of complying with the requirements of the Bank
of England and/or the Financial Services Authority or the European Central Bank
in relation to its making, funding or maintaining Eurocurrency Rate Loans; or


     (iv) impose on any Lender or any L/C Issuer or the London interbank market any
other condition, cost or expense affecting this Agreement or Eurocurrency Rate
Loans made by such Lender or any Letter of Credit or participation therein;


and the result of any of the foregoing
shall be to increase the cost to such Lender of making, converting to,
continuing or maintaining any Loan the interest on which is determined by
reference to the Eurocurrency Rate (or of maintaining its obligation to make any
such Loan), or to increase the cost to such Lender or such L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of maintaining
its obligation to participate in or to issue any Letter of Credit), or to reduce
the amount of any sum received or receivable by such Lender or such L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or such L/C Issuer, the Borrower will pay to such Lender
or such L/C Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or such L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered. 

     (b)
Capital Requirements. If any Lender or any L/C Issuer determines that any Change
in Law affecting such Lender or such L/C Issuer or any Lending Office of such
Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding
capital or liquidity requirements has or would have the effect of reducing the
rate of return on such Lender’s or such L/C Issuer’s capital or on the capital
of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit or Swing Line Loans held by, such Lender, or
the Letters of Credit issued by such L/C Issuer, to a level below that which
such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding
company could have achieved but for such Change in Law (taking into
consideration such Lender’s or such L/C Issuer’s policies and the policies of
such Lender’s or the L/C Issuer’s holding company with respect to capital
adequacy and liquidity), then from time to time the Borrower will pay to such
Lender or such L/C Issuer, as the case may be, such additional amount or amounts
as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C
Issuer’s holding company for any such reduction suffered. 

     (c)
Certificates for Reimbursement. A certificate of a Lender or an L/C Issuer setting forth the
amount or amounts necessary to compensate such Lender or such L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive
absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as
the case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof. 

56 







     (d) Delay in Requests. Failure or delay on
the part of any Lender or any L/C Issuer to demand compensation pursuant to the
foregoing provisions of this Section
3.04 shall not constitute a waiver of such
Lender’s or such L/C Issuer’s right to demand such compensation, provided that no Borrower
shall be required to compensate a Lender or an L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or
reductions suffered more than one hundred and eighty days prior to the date that
such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or such L/C Issuer’s intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the nine-month period referred to above shall be extended to
include the period of retroactive effect thereof). 

     (e)
Additional Reserve
Requirements. The Borrower shall pay to each
Lender, (i) 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 Eurocurrency 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), and (ii) as long as such Lender shall be required to comply with
any reserve ratio requirement or analogous requirement of any other central
banking or financial regulatory authority imposed in respect of the maintenance
of the Commitments or the funding of the Eurocurrency Rate Loans, such
additional costs (expressed as a percentage per annum and rounded upwards, if
necessary, to the nearest five decimal places) equal to the actual costs
allocated to such Commitment or Loan by such Lender (as determined by such
Lender in good faith, which determination shall be conclusive), which in each
case shall be due and payable on each date on which interest is payable on such
Loan, provided the Borrower shall have received at least 10 days’ prior notice (with a
copy to the Administrative Agent) of such additional interest or costs from such
Lender. If a Lender fails to give notice 10 days prior to the relevant Interest
Payment Date, such additional interest or costs shall be due and payable 10 days
from receipt of such notice. 

     (f)
Notwithstanding any other provision of this
Section, no Lender or L/C Issuer shall demand compensation for any increased
cost or reduction pursuant to this Section
3.04 if it shall not at the time be the
general policy or practice of such Lender or L/C Issuer to demand such
compensation from the borrowers similarly situated in similar circumstances
under comparable provisions of other credit agreements; provided, however, that nothing in
this Section shall require any Lender or any L/C Issuer to disclose any
confidential information related to similarly situated borrowers, comparable
provisions of other credit agreements or otherwise, and any Lender’s or any L/C
Issuer’s failure to provide such confidential information shall not preclude
such Lender or L/C Issuer, as applicable, from asserting that such other
borrower is similarly situated in similar circumstances to the Borrower and
providing non-confidential information with respect thereto.

57 







    
3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the Administrative 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 Loan other than a Base Rate Loan on a day other than the last
day of the Interest Period for such Loan (whether voluntary, mandatory,
automatic, by reason of acceleration, or otherwise); 

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

     (c)
any failure by the Borrower to make payment of
any Loan or drawing under any Letter of Credit (or interest due thereon)
denominated in an Alternative Currency on its scheduled due date or any payment
thereof in a different currency; or 

     (d)
any assignment of a Eurocurrency Rate Loan on a
day other than the last day of the Interest Period therefor as a result of a
request by the Borrower pursuant to Section
10.13; 

including any foreign exchange losses
and any loss (excluding loss of anticipated profits) or expense arising from the
liquidation or reemployment of funds obtained by it to maintain such Loan, from
fees payable to terminate the deposits from which such funds were obtained or
from the performance of any foreign exchange contract. 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 Eurocurrency Rate Loan made by it at the Eurocurrency
Rate for
such Loan by a matching deposit or other borrowing in the offshore interbank
market for such currency for a comparable amount and for a comparable period,
whether or not such Eurocurrency Rate Loan was in fact so funded. 

    
3.06 Mitigation Obligations; Replacement of
Lenders. 

     (a)
Designation of a Different Lending
Office. If any Lender requests compensation
under Section 3.04, or requires the Borrower to pay any Indemnified Taxes or additional
amounts to any Lender, any L/C Issuer, or any Governmental Authority for the
account of any Lender or any L/C Issuer pursuant to Section 3.01, or if any Lender gives a
notice pursuant to Section
3.02, then at the request of the Borrower
such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to
designate a different Lending Office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender or such L/C Issuer,
such designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for
the notice pursuant to Section
3.02, as applicable, and (ii) in each case,
would not subject such Lender or such L/C Issuer, as the case may be, to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender or such L/C Issuer, as the case may be. The Borrower hereby agrees to pay
all reasonable costs and expenses incurred by any Lender or any L/C Issuer in
connection with any such designation or assignment. 

     (b)
Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any Indemnified Taxes or additional amounts to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01 and, in each case, such Lender has declined or is unable to designate a
different lending office in accordance with Section 3.06(a), the Borrower may
replace such Lender in accordance with Section
10.13. 

58 







     3.07 Survival. All obligations
of the Borrower under this Article
III shall survive termination of the
Aggregate Commitments, repayment of all other Obligations hereunder, and
resignation of the Administrative Agent. 

ARTICLE IV. 
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 

    
4.01 Conditions of Initial Credit Extension. The obligation of each L/C Issuer and each Lender to make
its initial Credit Extension hereunder is subject to satisfaction of the
following conditions precedent: 

     (a)
The Administrative Agent’s receipt of the
following, each of which shall be originals or telecopies (followed promptly by
originals) unless otherwise specified, each properly executed by a Responsible
Officer of the Borrower, 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 Administrative Agent and each
of the Lenders: 

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

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

     (iii)
such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of the
Borrower as the Administrative Agent may require evidencing the identity,
authority and capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Agreement and the other Loan
Documents to which the Borrower is a party; 

     (iv)
such documents and certifications as the
Administrative Agent may reasonably require to evidence that the Borrower is
duly organized or formed and is validly existing, in good standing and qualified
to engage in business in New York; 

     (v)
a favorable opinion of Roya Behina, General
Counsel of the Borrower, and a favorable opinion of Shearman & Sterling LLP,
counsel to the Borrower, each addressed to the Administrative Agent and each
Lender, as to the matters concerning the Borrower and the Loan Documents as the
Administrative Agent or the Required Lenders may reasonably request; 

     (vi)
a certificate of a Responsible Officer of the
Borrower either (A) attaching copies of all consents, licenses and approvals
required in connection with the execution, delivery and performance by the
Borrower and the validity against the Borrower of the Loan Documents to which it
is a party, and such consents, licenses and approvals shall be in full force and
effect, or (B) stating that no such consents, licenses or approvals are so
required; 

     (vii)
a certificate signed by a Responsible Officer of
the Borrower certifying (A) that the conditions specified in Sections 4.02(a) and
(b) have
been satisfied, (B) that there has been no event or circumstance since the date
of the Audited Financial Statements that has had or could be reasonably expected
to have, either individually or in the aggregate, a Material Adverse Effect, and
(C) the current Debt Ratings; and 

59 









     (viii) evidence that the Existing
Credit Agreement has been or concurrently with the Closing Date is being
terminated and all amounts owing thereunder have been or concurrently with the
Closing Date are being repaid in full and all Liens, if any, securing
obligations under the Existing Credit Agreement have been or, concurrently with
the Closing Date, are being released.

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

     (c)
The Administrative Agent’s receipt of the Audited
Financial Statements and the most recently available quarterly financial
statements of the Borrower and its Subsidiaries. 

     (d)
Unless waived by the Administrative Agent, the
Borrower shall have paid all fees, charges and disbursements of counsel to the
Administrative Agent (directly to such counsel if requested by the
Administrative Agent) to the extent invoiced prior to or on the Closing Date,
plus such additional amounts of such fees, charges and disbursements as shall
constitute its reasonable estimate of such fees, charges and disbursements
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 Administrative Agent). 

     Without limiting the generality of
the provisions of the last paragraph of Section 9.03, for purposes of
determining compliance with the conditions specified in this 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 Administrative Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.


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

     (a)
The representations and warranties of (i) the
Borrower contained in Article
V (excluding, however, Section 5.05(c) and
Section 5.06 with respect to any Request for Credit Extension after the Closing Date)
and contained in each other Loan Document, or 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 (or, with respect to any
representation or warranty qualified by reference to materiality or Material
Adverse Effect, in all respects) on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct as of such
earlier date, and except that for purposes of this Section 4.02, the
representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be
deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section
6.01. 

     (b)
No Default shall exist, or would result from such
proposed Credit Extension or from the application of the proceeds thereof.


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

60 







     (d)
In the case of a Credit Extension to be
denominated in an Alternative Currency, there shall not have occurred any change
in national or international financial, political or economic conditions or
currency exchange rates or exchange controls which in the reasonable opinion of
the Administrative Agent, the Required Lenders (in the case of any Loans to be
denominated in an Alternative Currency) or the applicable L/C Issuer (in the
case of any Letter of Credit to be denominated in an Alternative Currency) would
make it impracticable for such Credit Extension to be denominated in the
relevant Alternative Currency. 

Each Request for Credit Extension
(other than a Committed Loan Notice requesting only a conversion of Committed
Loans to the other Type or a continuation of Eurocurrency 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 

     The Borrower represents and warrants
to the Administrative Agent and the Lenders that: 

     5.01 Existence, Qualification and
Power; Compliance with Laws. The
Borrower and each Subsidiary (a) is duly incorporated or organized, validly
existing and in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all
requisite governmental licenses, authorizations, consents and approvals to (i)
own its assets and carry on its business and (ii) execute, deliver and perform
its obligations under the Loan Documents (if any) to which it is a party, (c) is
duly qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license and (d) is in
compliance with all Laws, regulations and orders of any Governmental Authority
applicable to it or its properties; except in each case referred to in
clause (b)(i), (c) or (d), to the extent that failure to do so could not reasonably be expected to
result in a Material Adverse Effect. 

     5.02 Authorization; No
Contravention. The execution, delivery
and performance by the Borrower of each Loan Document have been duly authorized
by all necessary corporate or other organizational action, and do not and will
not (a) contravene the terms of the Borrower’s Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, or require any payment to be made under (i) any material
agreement, instrument or undertaking to which the Borrower is a party or
affecting the Borrower or the properties of the Borrower or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which the Borrower or its property is
subject; or (c) violate any Law, rule or regulation. The Borrower and each
Subsidiary is in compliance with all agreements, instruments and undertakings
referred to in clause (b)(i), except to the extent that failure to be in compliance could
not reasonably be expected to result in a Material Adverse Effect. 

     5.03 Governmental Authorization;
Other Consents. No registration with or
consent or approval of, or other action by, any Governmental Authority or any
other Person is required in connection with the execution, delivery and
performance of this Agreement or the other Loan Documents by the Borrower or the
borrowings and each other extension of credit hereunder, other than
registrations, consents and approvals received prior to the date hereof and
which are in full force and effect or such registrations, consents and approvals
referred to in Section 5.01 hereof. 

61 







     5.04 Binding
Effect. This Agreement has been, and
each other Loan Document, when delivered hereunder, will have been, duly
executed and delivered by the Borrower. This Agreement constitutes, and
each other Loan Document when so executed and delivered will constitute, a
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms except to the extent that enforcement may
be limited by applicable bankruptcy, reorganization, moratorium, insolvency and
similar Laws affecting creditors’ rights generally or by equitable principles of
general application, regardless of whether considered in a proceeding in equity
or at law. 

     5.05 Financial Statements; No
Material Adverse Effect. 

     (a)
The Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present in all material respects the consolidated financial condition of the
Borrower and its Subsidiaries as of the date thereof and their consolidated
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries as of
the date thereof, including liabilities for taxes, material commitments and
Indebtedness. 

     (b)
The unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at January 31, 2013, and the related unaudited
consolidated statements of earnings and cash flows for the fiscal quarter ended
on that date, (i) were prepared in accordance with GAAP consistently applied
throughout the period covered thereby, except as otherwise expressly noted
therein and (ii) fairly present in all material respects the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby, subject, in the case of
clauses (i)
and (ii),
to the absence of footnotes and to normal year-end audit adjustments.


     (c)
Since the date of the Audited Financial
Statements, there has been no event or circumstance, either individually or in
the aggregate, that has resulted, or could reasonably be expected to result, in
a Material Adverse Effect. The Borrower is Solvent. 

     5.06 Litigation.

     (a)
There are no actions, suits or proceedings
(whether or not purportedly on behalf of the Borrower or any Subsidiary) pending
or, to the knowledge of the Borrower, threatened against or affecting the
Borrower or any Subsidiary at law or in equity or before or by any Governmental
Authority, which involve any of the Transactions or which could reasonably be
expected to result in a Material Adverse Effect. 

     (b)
Neither the Borrower nor any Subsidiary is in
default with respect to any judgment, writ, injunction, decree, rule or
regulation of any Governmental Authority which could reasonably be expected to
result in a Material Adverse Effect. 

     5.07 No
Default. Neither the Borrower nor any
Subsidiary is a party to any agreement, indenture, loan or credit agreement or
any lease or other agreement or instrument or subject to any charter or other
corporate restriction or any judgment, order, writ, injunction, decree or
regulation which could reasonably be expected to result in a Material Adverse
Effect.

     5.08 Ownership of Property;
Liens. The Borrower and each Subsidiary
has good title to its respective material properties and assets, and all such
material properties and assets are free and clear of all Liens other than
Permitted Liens. 

62 







     5.09 Environmental
Compliance. Except as disclosed in the
financial statements described in Section
5.05 (including the notes thereto), the
Borrower and each Subsidiary are in compliance with all applicable Environmental
Laws and neither the Borrower nor any Subsidiary has used Hazardous Materials
on, from, or affecting any property now owned or occupied or hereafter owned or
occupied by the Borrower or any such Subsidiary in any manner which violates any
applicable Environmental Law, except to the extent any such noncompliance or
violation could not reasonably be expected to result in a Material Adverse
Effect. Except as disclosed in the financial statements described in
Section 5.05 (including the notes thereto), to the best actual knowledge of any
Responsible Officer of the Borrower, no prior owner of any such property or any
tenant, subtenant, prior tenant or prior subtenant have used Hazardous Materials
on, from, or affecting such property in any manner which violates any applicable
Environmental Law, except to the extent any such violation could not reasonably
be expected to result in a Material Adverse Effect. 

     5.10 Insurance. The properties of the Borrower 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 the Borrower or the applicable Subsidiary operates.


     5.11 Taxes. Each of the Borrower and its Subsidiaries has timely filed
or caused to be filed (taking into account extensions) all Tax returns and
reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, has set aside on its books adequate reserves or (b)
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, result in a Material Adverse
Effect.

     5.12 ERISA
Compliance. No material liability under
ERISA or the Code (other than for PBGC premiums due but not delinquent), has
been imposed, or could reasonably be expected to be imposed, upon the Borrower
or any ERISA Affiliate. No ERISA Event has occurred, or could reasonably be
expected to occur, that, when taken together with any other ERISA Events that
have occurred, could reasonably be expected to result in a material liability to
the Borrower or any ERISA Affiliate. No lien imposed under the Code or ERISA on
the assets of the Borrower or any of its ERISA Affiliates exists or to the
knowledge of the Borrower is likely to arise on account of any Plan. The excess
of the present value of all projected benefit obligations under each Plan (based
on the assumptions used for purposes of preparing the audited financial
statements set forth in the Borrower’s most recent Annual Report on Form 10-K),
as of the date of the most recent financial statements reflecting such amounts,
over the fair market value of the assets of such Plan, if any, could not
reasonably be expected to result in a Material Adverse Effect. 

     5.13 Subsidiaries; Equity
Interests. Attached hereto as
Schedule 5.13 is a correct and complete list of each of the Subsidiaries (other than
directors and officers of the Borrower) as of the date hereof showing its name
and the jurisdiction of its incorporation. 

     5.14 Margin Regulations; Investment
Company Act. 

     (a)
Neither the Borrower nor any of its Subsidiaries
is engaged or will engage, principally or as one of its important activities, in
the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. Following the application of the proceeds
of each Borrowing and each issuance of a Letter of Credit, not more than 25% of
the value of the assets (either of the Borrower only or of the Borrower and its
Subsidiaries on a consolidated basis) subject to any
provision of this Agreement under which the sale, pledge or disposition of
assets is restricted (within the meaning of Regulation U) will be margin stock.


63 







     (b)
The Borrower is not required to register as an
“investment company” under the Investment Company Act of 1940. 

     5.15 Disclosure. No report, financial
statement, certificate or other information furnished in writing by or on behalf
the Borrower to the Administrative Agent, any L/C Issuer or any Lender in
connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document, taken as
whole with any other information furnished or publicly available, contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not materially misleading as of the date when made or delivered;
provided
that, with respect to any forecast, projection or other statement regarding
future performance, future financial results or other future developments, the
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time such information was
prepared (it being understood that any such information is subject to
significant uncertainties and contingencies, many of which are beyond the
Borrower’s control, and that no assurance can be given that the future
developments addressed in such information can be realized). 

     5.16 Permits and Licenses,
Etc. The Borrower and each Subsidiary
has all permits, licenses, certifications, authorizations and approvals required
for it lawfully to own and operate its respective business except to the extent
the failure to have any such permit, license, certification, authorization or
approval could not reasonably be expected to result in a Material Adverse
Effect. 

     5.17 Labor Disputes and Acts of
God. Neither the business nor the
properties of the Borrower or any Subsidiary are affected by any accident, loss,
theft, destruction, strike, lockout or other labor dispute, embargo,
condemnation, act of God or of the public enemy or other casualty (whether or
not covered by insurance), which could reasonably be expected to result in a
Material Adverse Effect. 

     5.18 Sanctions. Neither the Borrower nor any Subsidiary, nor, to the
Borrower’s knowledge, any Related Party, (i) is currently the subject of any
Sanctions, (ii) is located, organized or residing in any Designated
Jurisdiction, or (iii) is engaged in any transaction with any Person who is now
the subject of Sanctions or who is located, organized or residing in any
Designated Jurisdiction, except pursuant to a valid license by the appropriate
Governmental Authority. No Loan, nor the proceeds from any Loan, has been used,
except pursuant to a valid license by the appropriate Governmental Authority,
directly or indirectly, to lend, contribute, provide or has otherwise made
available to fund any activity or business in any Designated Jurisdiction or to
fund any activity or business of any Person located, organized or residing in
any Designated Jurisdiction or who is the subject of any Sanctions, or in any
other manner that will result in any violation by any Person (including any
Lender, any Arranger, the Administrative Agent, any L/C Issuer or the Swing Line
Lender) of Sanctions. 

     5.19 Cash Pool
Arrangements. The Cash Pool Availability
under each Cash Pool Arrangement exceeds the Cash Pool Obligations outstanding
thereunder, and no Cash Pool Bank has made extensions of third party financing
pursuant to any Cash Pool Arrangement in excess of the Cash Pool Availability
thereunder. Attached hereto as Schedule
5.19 is a correct and complete list of all
Cash Pool Arrangements of the Borrower and its Subsidiaries as of the date
hereof. 

64 







ARTICLE VI.
AFFIRMATIVE COVENANTS


     So long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder (other than
contingent indemnification obligations as to which no claim has been asserted)
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the Borrower shall, and shall (except in the case of the covenants
set forth in Sections 6.01, 6.02, and 6.03) cause each Subsidiary to: 

     6.01 Financial
Statements. Deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders: 

     (a)
as soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower or at such earlier time
as the SEC may require the Borrower to deliver its Form 10-K (commencing with
the fiscal year ending July 31, 2013), a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of earnings, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail and prepared in accordance
with GAAP consistently applied throughout the periods covered thereby, except as
otherwise expressly noted therein, audited and accompanied by a report and
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Required Lenders, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception
or any qualification or exception as to the scope of such financial statement
audit; and

     (b)
as soon as available, but in any event within 45
days after the end of each of the first three fiscal quarters of the Borrower or
at such earlier time as the SEC may require the Borrower to deliver its Form
10-Q (commencing with the fiscal quarter ended April 30, 2013), (i) a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end of
such quarter and (ii) consolidated statements of earnings of the Borrower and
its Subsidiaries for such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with such quarter, and a
statement of cash flows for the portion of the fiscal year ending with such
quarter, setting forth in each case in comparative form the figures for the
corresponding periods in the previous fiscal year, all in reasonable detail,
prepared in accordance with GAAP applicable to quarterly financial statements
generally consistently applied throughout the periods covered thereby, except as
otherwise expressly noted therein, and certified by a Responsible Officer of the
Borrower as fairly presenting, in all material respects, the financial position
of the Borrower and its Subsidiaries being reported on and their results of
operations and cash flows, subject to the changes resulting from year-end
adjustments. 

As to any information contained in
materials furnished pursuant to Section
6.02(c), the Borrower shall not be separately
required to furnish such information under clause (a) or (b) above, but the
foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in clauses (a) and (b) above at the times
specified therein. 

     6.02 Certificates; Other
Information. Deliver to the
Administrative Agent, in form and detail satisfactory to the Administrative
Agent and the Required Lenders: 

     (a)
concurrently with the delivery of the financial
statements referred to in Section 6.01(a), a certificate of its
independent certified public accountants certifying such financial statements and stating that in making the examination
necessary therefor no knowledge was obtained of any Default or, if any such
Default shall exist, stating the nature and status of such event;


65 







     (b)
concurrently with the delivery of the financial
statements referred to in Section 6.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of the Borrower;


     (c)
promptly after the same are available, copies of
each annual report, proxy or financial statement or other report or
communication sent to the stockholders of the Borrower, and copies of all
annual, regular, periodic and special reports and registration statements which
the Borrower may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; 

     (d)
promptly, and in any event within five Business
Days after receipt thereof by the Borrower or any Subsidiary thereof, copies of
each notice or other correspondence received from the SEC or the U.S. Department
of Justice concerning any investigation or possible investigation or other
inquiry by such agency regarding financial or other operational results of the
Borrower or any Subsidiary thereof; and


     (e)
promptly, such additional information regarding
the business, financial or corporate affairs of the Borrower or any Subsidiary,
or compliance with the terms of the Loan Documents, as the Administrative Agent
or any Lender may from time to time reasonably request. 

     Documents required to be delivered
pursuant to Section 6.01(a) or (b) or paragraph
(c) of this Section (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet at
www.pall.com; or (ii) on which such documents are posted on the Borrower’s
behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent has access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that (A) the Borrower shall
deliver paper copies of such documents to the Administrative Agent or any Lender
upon its request to the Borrower to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (B) the Borrower shall notify the Administrative Agent (by
facsimile transmission or electronic mail) of the posting of any such documents
and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft
copies) of such documents. The Administrative Agent shall have no obligation to
request the delivery of or to maintain paper copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request by a Lender for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents. 

     The Borrower hereby acknowledges
that (a) the Administrative Agent and/or the Arrangers may make available to the
Lenders and the L/C Issuers materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on DebtDomain, IntraLinks, Syndtrak or another similar
electronic system (the “Platform”) and (b) certain of the
Lenders (each, a “Public
Lender”) may have personnel who do not wish
to receive material non-public information with respect to the Borrower or its
Affiliates, or the respective securities of any of the foregoing, and who may be
engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that (w)
all Borrower Materials that are to be made available to Public Lenders shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that
the word “PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers, the L/C Issuers and the
Lenders to treat such Borrower Materials as either publicly available
information or not containing any material non-public information (although it
may be sensitive and proprietary) with respect to the Borrower or its securities
for purposes of United States Federal and state securities laws (provided that to the extent
such Borrower Materials constitute Information, they shall be treated as set
forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to
be made available through a portion of the Platform designated “Public Side
Information”; and (z) the Administrative Agent and the Arrangers shall be
entitled to treat any Borrower Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Side Information”.

66 







     6.03 Notices. Promptly notify the Administrative Agent: 

     (a)
of the occurrence of any Default or Event of
Default; 

     (b)
of any matter that has resulted or could
reasonably be expected to result in a Material Adverse Effect; 

     (c)
of the occurrence of any ERISA Event; 

     (d)
of any material change in accounting policies or
financial reporting practices by the Borrower or any Subsidiary not mandated by
GAAP; and 

     (e)
of any announcement by Moody’s or S&P of any
change in a Debt Rating. 

     Each notice pursuant to this Section
(other than subsection (e)) shall be accompanied by a statement of a Responsible
Officer of the Borrower setting forth details of the occurrence referred to
therein and stating what action the Borrower has taken and proposes to take with
respect thereto. Each notice pursuant to paragraph (a) of this Section shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached. 

     6.04 Payment of
Obligations. 

     (a) Pay all Indebtedness and
obligations (in each case in an amount in excess of the Threshold Amount), now
existing or hereafter arising, as and when due and payable except where (i) the
validity or amount thereof is being contested in good faith and by appropriate
proceedings, which proceedings shall include good faith negotiations, and (ii)
the Borrower or any Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP, and (iii) the failure to make such
payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect, and (b) pay and discharge or cause to be paid and
discharged promptly all Taxes imposed upon it or upon its income and profits, or
upon any of its property, real, personal or mixed, or upon any part thereof, as
and when due and payable, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a lien or charge upon such
properties or any part thereof or except where the failure to make such payment
could not reasonably be expected to result in a Material Adverse Effect;
provided,
however,
that neither the Borrower nor any Subsidiary shall be required to pay and
discharge or cause to be paid and discharged any such Tax, assessment, charge,
levy or claim so long as the validity thereof shall be contested in good faith
by appropriate proceedings, and the Borrower or such Subsidiary, as the case may
be, shall have set aside on its books adequate reserves determined in accordance
with GAAP with respect to any such tax, assessment,
charge, levy or claim so contested; provided further that, subject to the foregoing
proviso, the Borrower and each Subsidiary will pay or cause to be paid all such
taxes, assessments, charges, levies or claims upon the commencement of
proceedings to foreclose any lien which has attached as security therefor.


67 







     6.05 Preservation of Existence,
Etc. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05, (b) take all reasonable action to maintain all rights, privileges,
permits, licenses and franchises (other than as expressly permitted herein)
necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to result in a
Material Adverse Effect and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to result in a Material Adverse Effect. 

     6.06 Maintenance of
Properties. (a) Maintain, preserve and
protect all of its material properties and equipment necessary in the operation
of its business in good working order and condition, ordinary wear and tear
excepted; (b) make all necessary repairs and improvements thereto and renewals
and replacements thereof so that the business carried on in connection therewith
may be conducted in the ordinary course at all times in the manner and custom of
similar businesses; and (c) use the standard of care typical in the industry in
the operation and maintenance of its facilities. 

     6.07 Maintenance of
Insurance. Maintain with financially
sound and reputable insurance companies that are not Affiliates of the Borrower,
or through self-insurance, if adequate reserves are maintained with respect
thereto, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar business, of such types (including hazard, business interruption,
public liability and product liability) and in such amounts (including
deductibles and co-insurance, if adequate reserves are maintained with respect
thereto) as are customarily carried under similar circumstances by such other
Persons. 

     6.08 Compliance with
Laws. Comply with the requirements of
all applicable Laws, rules, regulations and orders of any Governmental Authority
(including Environmental Laws), the breach of which could reasonably be expected
to result in a Material Adverse Effect, including, without limitation, the rules
and regulations of the FRB. 

     6.09 Books and
Records. Maintain adequate records and
proper books of record and account in which full entries, true and correct in
all material respects, will be made in a manner to enable the preparation of
financial statements in accordance with GAAP, and which shall reflect all
financial transactions of the Borrower and each Subsidiary and matters involving
the assets and business of the Borrower and each Subsidiary. 

     6.10 Inspection
Rights. At any time during normal
business hours, upon reasonable advance notice and subject to compliance by the
Administrative Agent with the Borrower’s normal confidentiality requirements,
permit the Administrative Agent or any of its agents or representatives to
examine the books and records of the Borrower and its Subsidiaries and to visit
the properties of the Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with any of the
Borrower’s executive officers or, in the presence of a Responsible Officer of
the Borrower or a person designated in writing by a Responsible Officer of the
Borrower, the Borrower’s independent accountants. 

68 







     6.11 Use of
Proceeds. Use the proceeds of the Credit
Extensions for working capital and general corporate purposes not in
contravention of any Law or of any Loan Document and to refinance certain
existing indebtedness. 

     6.12 Cash Pool
Arrangements. Maintain Cash Pool
Availability under each Cash Pool Arrangement in excess of the Cash Pool
Obligations outstanding thereunder. 

ARTICLE VII.
NEGATIVE COVENANTS


     So long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder (other than
contingent indemnification obligations as to which no claim has been asserted)
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain
outstanding, the Borrower shall not, nor shall it permit any Subsidiary to,
directly or indirectly: 

     7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following (collectively, “Permitted Liens”): 

     (a)
Liens created under any Loan Document;


     (b)
Liens existing on the date of this Agreement and
listed on Schedule 7.01, and extensions, renewals and replacements thereof to the
extent such extensions, renewals and replacements secure only the obligations
secured by such original Liens and extend only to the assets covered by such
original Liens; 

     (c)
Liens imposed by Law for Taxes (i) not yet due or
(ii) which are being contested in compliance with Section 6.04; 

     (d)
carriers’, warehousemen’s, mechanics’,
materialmen’s, repairmen’s or other like Liens arising in the ordinary course of
business which are not yet due and payable or the payment of which is not at the
time required; 

     (e)
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 or, with
respect to any Plan, the Code; 

     (f)
deposits to secure (or obtain letters of credit
that secure) the performance of tenders, statutory obligations, surety bonds,
appeal bonds, bids, leases, performance bonds, purchase, construction or sales
contracts and other similar obligations, in each case not incurred or made in
connection with the borrowing of money, the obtaining of advances or credit or
the payment of the deferred purchase price of property; 

     (g)
leases or subleases granted to others, easements,
rights-of-way, restrictions (including zoning restrictions) and other similar
encumbrances affecting real property which, in the aggregate could not result in
a Material Adverse Effect; 

     (h)
Liens securing judgments for the payment of money
not constituting an Event of Default under Section 8.01(h) or securing appeal or
other surety bonds related to such judgments, unless the judgment it secures
shall not, within 60 days after the entry thereof, have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within 60 days after the expiration of any stay;

69 







     (i)
Liens securing leases; 

     (j)
Liens (i) of a collection bank arising under
Section 4-210 of the Uniform Commercial Code on items in the course of
collection, (ii) attaching to commodity trading accounts or other commodities
brokerage accounts incurred in the ordinary course of business and not for
speculative purposes; and (iii) in favor of a banking or other financial
institution arising as a matter of law or under customary general terms and
conditions encumbering deposits (including the right of set-off) and which are
within the general parameters customary in the banking industry, provided that (1) the
account containing such deposits is not a dedicated cash collateral account and
is not subject to restrictions against access by the Borrower in excess of those
set forth by regulations promulgated by the FRB, and (2) the account containing
such deposits is not intended by the Borrower to provide collateral to the
depository institution; 

     (k)
Liens on cash of Subsidiaries on deposit with any
Cash Pool Bank securing Cash Pool Obligations owed to such Cash Pool Bank;


     (l)
Liens in favor of the New Notes Trustee deemed to
exist on any proceeds of Refinancing Notes held in a restricted deposit account
designated for such purpose;

     (m)
Liens on the assets of Securitization Finance
Subsidiaries, provided that such Liens shall only secure obligations with
respect to a Permitted Securitization Financing;

     (n)
Licenses or sublicenses granted to others in the
ordinary course of business; 

     (o)
Liens (i) in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods in the ordinary course of business or
(ii) on specific items of inventory or other goods and proceeds of any Person
securing such Person’s obligations in respect of bankers’ acceptances or letters
of credit issued or created for the account of such Person to facilitate the
purchase, shipment or storage of such inventory or other goods in the ordinary
course of business; 

     (p)
Liens on cash advances in favor of the seller of
any property to be acquired in an Investment permitted pursuant to
Sections 7.02 to be applied against the purchase price for such Investment;


     (q)
Liens existing on property at the time of its
acquisition or existing on the property of any Person that becomes a Subsidiary
after the date hereof; provided, that (i) such Lien was not
created in contemplation of such acquisition or such Person becoming a
Subsidiary, and (ii) such Lien does not extend to or cover any other assets or
property (other than the proceeds or products thereof); 

     (r)
Liens arising from precautionary UCC financing
statement filings regarding leases entered into by the Borrower or any
Subsidiary in the ordinary course of business; 

     (s)
any interest or title of a lessor, sublessor,
licensee, sublicensee, licensor or sublicensor under any lease, sublease,
license or sublicense agreement (including software and other technology
licenses) in the ordinary course of business; 

     (t)
Liens arising out of conditional sale, title
retention, consignment or similar arrangements for sale of goods entered into by
the Borrower or any Subsidiary in the ordinary course of business; 

70 







     (u)
deposits made in the ordinary course of business
to secure liability to insurance carriers; 

     (v)
receipt of progress payments and advances from
customers in the ordinary course of business to the extent same creates a Lien
on the related inventory and proceeds thereof; 

     (w)
Liens granted in connection with Swap Contracts
in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets or property held
or reasonably anticipated by the Borrower or its Subsidiaries, or changes in the
value of securities issued by the Borrower or its Subsidiaries, and not for
purposes of speculation or taking a “market view”; and 

     (x)
Liens not expressly permitted by clauses (a) through
(k) and
(n) through
(w) above
securing or deemed to exist in connection with Priority Indebtedness permitted
under Section 7.03; provided that such Liens shall not secure any other obligations (other than
principal, interest, fee, expense reimbursement, indemnity and similar
obligations associated with such permitted Priority
Indebtedness). 

     7.02 Investments. Make any
Investments, except: 

     (a)
Investments held by the Borrower or any
Subsidiary in the form of Eligible Investments; 

     (b)
Investments of the Borrower in any Subsidiary and
Investments of any Subsidiary in the Borrower or in another Subsidiary;


     (c)
Investments consisting of extensions of credit in
the nature of accounts receivable or notes receivable arising from the grant of
trade credit in the ordinary course of business, and Investments received in
satisfaction or partial satisfaction thereof from financially troubled account
debtors to the extent reasonably necessary in order to prevent or limit loss;


     (d)
Investments constituting Permitted Acquisitions;


     (e)
Investments (including by the purchase of Equity
Interests) (other than Investments listed on Schedule 7.02 hereto, such Investments
being permitted by clause (h) below) by the Borrower in any Person which is not a
Subsidiary; provided that such entities are engaged in a business which is related
to the business of the Borrower, and provided further that the aggregate amount of
all Investments made pursuant to this paragraph, calculated at the time of the
incurrence of each such Investment, is in an amount not in excess of 15.0% of
the Consolidated Tangible Assets of the Borrower and its Subsidiaries


     (f)
Investments in the Borrower’s benefits protection
trust, established for the purpose of satisfying certain supplemental retirement
benefit obligations for eligible executives in the event of a change of control
of the Borrower;

     (g)
Investments in a Securitization Finance
Subsidiary or any Investment by a Securitization Finance Subsidiary in any other
Person in connection with and as reasonably necessary for a Permitted
Securitization Financing; and

     (h)
Investments not otherwise specified in
clauses (a)
through (f)
hereof that are described on Schedule
7.02 hereto. 

71 







     7.03 Priority
Indebtedness. Permit the aggregate
Priority Indebtedness (excluding the Priority Indebtedness listed on
Schedule 7.03 and extensions, renewals and replacements thereof to the extent such
extensions, renewals and replacements (i) do not increase the outstanding
principal amount thereof, (ii) do not result in an earlier maturity date or
decreased weighted average life thereof and (iii) are not secured by any Liens
other than those permitted by Section
7.01(b)) of the Borrower and its Subsidiaries
at any time to exceed 10.0% of Consolidated Net Tangible Assets as of the most
recent fiscal quarter end of the Borrower. 

     7.04 Fundamental
Changes. Merge, dissolve, liquidate,
consolidate with or into another Person, or Dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets (whether now owned or hereafter acquired) to or in favor of any Person or
purchase or otherwise acquire all or substantially all of the assets of any
Person (or any division thereof) whether in one transaction or a series of
transactions, except that, so long as no Default exists or would result
therefrom: 

     (a)
any US Subsidiary may merge with (i) the
Borrower; provided that the Borrower shall be the continuing or surviving Person or (ii)
any one or more other US Subsidiaries; 

     (b)
any Foreign Subsidiary may merge with any one or
more other Foreign Subsidiaries; 

     (c)
any Subsidiary may Dispose of all or
substantially all its assets (upon voluntary liquidation or otherwise) to the
Borrower or to another Subsidiary; 

     (d)
the Borrower and any Subsidiary may make
Investments permitted under Section 7.02 and Permitted Acquisitions; and


     (e)
the Borrower may merge with and into a US
Subsidiary; provided that (i) the Borrower shall notify the Administrative Agent
not less than thirty days prior to such event and (ii) the surviving entity
shall assume the obligations of the merged entity pursuant to this Agreement or
any of the other Loan Documents and shall execute such documents and agreements
as may be reasonably required by the Administrative Agent. 

     7.05 Dispositions. Make any
Disposition or enter into any agreement to make any Disposition, except:


     (a)
Dispositions of properties or assets no longer
used or useful in the conduct of their respective businesses;

     (b)
Dispositions of inventory in the ordinary course
of business; 

     (c)
Dispositions of property by the Borrower or any
Subsidiary to the Borrower or to a Subsidiary; 

     (d)
Dispositions of all or substantially all the
assets of the Borrower or a Subsidiary permitted by Section 7.04; 

     (e)
Dispositions of notes, accounts receivable or
other obligations owing to the Borrower or any Subsidiary of the Borrower, with
or without recourse, including for collections in the ordinary course of
business; 

     (f)
the making of Investments permitted by
Section 7.02 and the making of Restricted Payments permitted by Section 7.06;
and

72 







     (g)
Dispositions by the Borrower and its Subsidiaries
not otherwise permitted under this Section; provided that (i) at the time of each
such Disposition, no Default shall exist or would result from such Disposition
and (ii) the aggregate book value of all property Disposed of in reliance on
this clause (g) in any fiscal year shall not exceed the amount expressed in dollars
which is equal to 15% of the aggregate book value of the assets of the Borrower
and its Subsidiaries on a consolidated basis calculated at the time such
Disposition is made; 

provided, however, that any Disposition pursuant to the foregoing clauses (other than
clause (c))
shall be for at least fair market value. 

     7.06 Restricted
Payments. If a Default shall have
occurred and is continuing, declare any dividend on, or make any payment on
account of, or set apart assets for a sinking or other analogous fund for, the
purchase, redemption, defeasance, retirement or other acquisition of any shares
or any class of stock of the Borrower whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash, securities or property or in obligations of the Borrower or in
any combination thereof (each of the foregoing being a “Restricted Payment”). 

     7.07 Change in Nature of
Business. Engage in any material line of
business which is substantially different (i) from those lines of business
conducted by the Borrower and its Subsidiaries on the date of this Agreement and
(ii) from any business substantially related or incidental to those lines of
business conducted by the Borrower and its Subsidiaries on the date of this
Agreement. 

     7.08 Transactions with
Affiliates. Enter into any transaction
of any kind with any Affiliate of the Borrower, except in the ordinary course of
and pursuant to the reasonable requirements of the Borrower’s or any of the
Subsidiaries’ business and on fair and reasonable terms substantially as
favorable to the Borrower or such Subsidiary as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm’s length transaction
with a Person other than an Affiliate; provided that the foregoing
restriction shall not apply to (i) transactions among the Borrower and the
Subsidiaries, (ii) Restricted Payments permitted under Section 7.06, and (iii)
agreements in connection with Permitted Securitization Financings. 

     7.09 Use of
Proceeds. Use the proceeds of any Credit
Extension, whether directly or indirectly, and whether immediately, incidentally
or ultimately, to purchase or carry margin stock (within the meaning of
Regulation U of the FRB) or to extend credit to others for the purpose of
purchasing or carrying margin stock or to refund indebtedness originally
incurred for such purpose. 

     7.10 Consolidated Leverage Ratio.
Permit the Consolidated Leverage Ratio
as of the last day of any fiscal quarter of the Borrower to be greater than 3.50
to 1.00. 

     7.11 Hazardous
Materials. Except to the extent failures
to do so could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect, cause or permit any of its properties or
assets to be used to generate, manufacture, refine, transport, treat, store,
handle, dispose of, transfer, produce or process Hazardous Materials, except in
compliance with all applicable Federal, state and local Laws or regulations, or
cause or permit, as a result of any intentional or negligent act or omission on
the part of the Borrower or any of its Subsidiaries, a release of Hazardous
Materials onto such property or asset or onto any other property, except in
compliance with such Laws and regulations.


     7.12 Sanctions. Directly or indirectly, except pursuant to a valid license
by the appropriate Governmental Authority, use the proceeds of any Credit
Extension, or lend, contribute or otherwise make available such proceeds to any
Subsidiary, joint venture partner or other individual or entity, to fund any
activities of or business with any individual or entity, or in any Designated
Jurisdiction, that, at the time of such funding, is the
subject of Sanctions, or in any other manner that will result in a violation by
any individual or entity (including any individual or entity participating in
the transaction, whether as Lender, Arranger, Administrative Agent, L/C Issuer,
Swing Line Lender, or otherwise) of Sanctions.

73 







ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES 

     8.01 Events of
Default. Any of the following shall
constitute an Event of Default: 

     (a)
Non-Payment. The Borrower fails to pay (i) when and as required to be paid herein,
and in the currency required hereunder, any amount of principal of any Loan or
any L/C Obligation, or (ii) within five days after the same becomes due, any
interest on any Loan or on any L/C Obligation, or any fee due hereunder, or any
other amount payable hereunder or under any other Loan Document; or 

     (b)
Specific Covenants. The Borrower fails to perform or observe any term, covenant or
agreement contained in any of Section
6.01, 6.02, 6.03, 6.05, 6.10, or 6.11 or Article VII; or 

     (c)
Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in subsection
(a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for
30 days after notice thereof from the Administrative Agent or the Borrower; or


     (d)
Representations and Warranties. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of the Borrower herein, in any other
Loan Document, or in any document delivered in connection herewith or therewith
shall be incorrect or misleading in any material respect (or, in the case of any
representation or warranty qualified by reference to materiality or Material
Adverse Effect, in any respect) when made or deemed made; or 

     (e)
Cross-Default. (i) The Borrower or any Subsidiary (A) fails to make any payment when
due (whether by scheduled maturity, required prepayment, acceleration, demand,
or otherwise) in respect of any Indebtedness or Guarantee (other than
Indebtedness hereunder and Indebtedness under Swap Contracts) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than the Threshold Amount, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or redeem such
Indebtedness to be made, prior to its stated maturity, or such Guarantee to
become payable or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from any event of default under such Swap Contract
as to which the Borrower or any Subsidiary is the Defaulting Party (as defined
in such Swap Contract), the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or


74 







     (f)
Insolvency Proceedings, Etc. An involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar Law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered; or the Borrower or any Subsidiary shall (A) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar Law now or hereafter in effect, (B) consent to the institution of, or
fail to contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Section, (C) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, (D)
file an answer admitting the material allegations of a petition filed against it
in any such proceeding, (E) make a general assignment for the benefit of
creditors or (F) take any action for the purpose of effecting any of the
foregoing; or 

     (g)
Inability to Pay Debts;
Attachment. The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due; or 

     (h)
Judgments.
There is entered against the Borrower or any Subsidiary (i) one or more final
judgments or orders for the payment of money in an aggregate amount (as to all
such judgments or orders) exceeding the Threshold Amount (to the extent not
covered by independent third-party insurance as to which the insurer does not
dispute coverage), or (ii) any one or more non-monetary final judgments that
have, or could reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect and, in either case, (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period
of 30 consecutive days during which a stay of enforcement of such judgment, by
reason of a pending appeal or otherwise, is not in effect; or 

     (i)
ERISA. (i)
An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which
has resulted or could reasonably be expected to result in liability of the
Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the
Borrower or any ERISA Affiliate fails to pay when due, after the expiration of
any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in
an aggregate amount in excess of the Threshold Amount; or 

     (j)
Invalidity of Loan Documents. Any Loan Document, at any time after its execution and
delivery and for any reason other than as expressly permitted hereunder or
thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or the Borrower contests in any manner the validity or
enforceability of any material provision of any Loan Document; or the Borrower
denies that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan Document; or


     (k)
Change of Control. There occurs any Change of Control. 

75






     8.02 Remedies Upon Event of
Default. If any Event of Default occurs
and is continuing, the Administrative 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 each L/C Issuer 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 Loan 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 Minimum Collateral Amount with
respect thereto). 

     (d)
exercise on behalf of itself, the Lenders and
each L/C Issuer all rights and remedies available to it, the Lenders and each
L/C Issuer under the Loan Documents; 

provided, however, that upon the occurrence of an actual or deemed entry of an order for
relief with respect to the Borrower under the Bankruptcy Code of the United
States, the obligation of each Lender to make Loans and any obligation of each
L/C Issuer 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 Administrative Agent or any Lender. 

     8.03 Application of
Funds. After the exercise of remedies
provided for in Section 8.02 (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 8.02), any amounts received on
account of the Obligations shall, subject to the provisions of Sections 2.14 and
2.15, be
applied by the Administrative Agent in the following order: 

     First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and
disbursements of counsel to the Administrative Agent and amounts payable under
Article III) payable to the Administrative Agent in its capacity as such;


     Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal, interest and Letter of
Credit Fees) payable to the Lenders and each L/C Issuer (including fees, charges
and disbursements of counsel to the respective Lenders and the L/C Issuers and
amounts payable under Article
III), ratably among them in proportion to the
respective amounts described in this clause Second payable to them; 

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

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

     Fifth, to the Administrative 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 Letters of Credit to the extent not otherwise Cash Collateralized by
the Borrower pursuant to Sections
2.03 and 2.14; and 

76 









      
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 Sections 2.03(c) and 2.14, amounts used to Cash Collateralize the aggregate undrawn
amount of Letters of Credit pursuant to clause Fifth 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 IX. 
ADMINISTRATIVE AGENT


      
9.01 Appointment and Authority. Each of the Lenders and each L/C Issuer hereby irrevocably appoints
Bank of America to act on its behalf as the Administrative Agent hereunder and
under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms hereof or thereof, together with such actions
and powers as are reasonably incidental thereto. The provisions of this Article
are solely for the benefit of the Administrative Agent, the Lenders and each L/C
Issuer, and the Borrower shall not have rights as a third party beneficiary of
any of such provisions. It is understood and agreed that the use of the term
“agent” herein or in any other Loan Documents (or any other similar term) with
reference to the Administrative 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 as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
contracting parties. 

      
9.02 Rights as a Lender.
The Person serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
“Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, own securities of, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as if
such Person were not the Administrative Agent hereunder and without any duty to
account therefor to the Lenders. 

      
9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein and in the other Loan Documents, and its
duties hereunder shall be administrative in nature. Without limiting the
generality of the foregoing, the Administrative Agent: 

       (a)
shall not be subject to any fiduciary or other
implied duties, regardless of whether a Default has occurred and is
continuing; 

       (b)
shall not have any duty to take any discretionary
action or exercise any discretionary powers, except discretionary rights and
powers expressly contemplated hereby or by the other Loan Documents that the
Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall be
expressly provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable Law, including
for the avoidance of doubt any action that may be in violation of the automatic
stay under any Debtor Relief Law or that may effect a forfeiture, modification
or termination of property of a Defaulting Lender in violation of any Debtor
Relief Law; and

77 







       (c)
shall not, except as expressly set forth herein
and in the other Loan Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Affiliates that is communicated to or obtained by the Person serving
as the Administrative Agent or any of its Affiliates in any capacity.


      
The Administrative Agent shall not be liable for any action taken or not taken
by it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the
Administrative Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections
10.01 and 8.02) or (ii) in the absence of its
own gross negligence or willful misconduct as determined by a court of competent
jurisdiction by final and nonappealable judgment. The Administrative Agent shall
be deemed not to have knowledge of any Default unless and until notice
describing such Default is given in writing to the Administrative Agent by the
Borrower, a Lender or an L/C Issuer. 

      
The Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan
Document or any other agreement, instrument or document or (v) the satisfaction
of any condition set forth in Article
IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.


      
9.04 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing
(including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or
otherwise authenticated by the proper Person. The Administrative Agent also may
rely upon any statement made to it orally or by telephone and believed by it to
have been made by the proper Person, and shall not incur any liability for
relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the issuance, extension, renewal or increase of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or
an L/C Issuer, the Administrative Agent may presume that such condition is
satisfactory to such Lender or such L/C Issuer unless the Administrative Agent
shall have received notice to the contrary from such Lender or such L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts. 

      
9.05 Delegation of Duties.
The Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Loan Document by or through any
one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article shall apply to any such sub-agent and to
the Related Parties of the Administrative Agent and any such sub-agent, and
shall apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent. The Administrative Agent shall not be responsible for the
negligence or misconduct of any sub-agents except to the extent that a court of
competent jurisdiction determines in a final and non-appealable judgment that
the Administrative Agent acted with gross negligence or willful misconduct in
the selection of such sub-agents.

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9.06 Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to
the Lenders, each L/C Issuer and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, in consultation with
the Borrower, to appoint a successor, which shall be a bank with an office in
the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation (or such earlier
day as shall be agreed by the Required Lenders) (the “Resignation Effective
Date”), then the retiring Administrative Agent may (but shall not be obligated
to) on behalf of the Lenders and each L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above. Whether or not
a successor has been appointed, such resignation shall become effective in
accordance with such notice on the Resignation Effective Date. 

       (b) If the Person serving as
Administrative Agent is a Defaulting Lender pursuant to clause (d) of the
definition thereof, the Required Lenders may, to the extent permitted by
applicable Law, by notice in writing to the Borrower and such Person remove such
Person as Administrative Agent and, in consultation with the Borrower, appoint a
successor. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days (or such earlier
day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such
removal shall nonetheless become effective in accordance with such notice on the
Removal Effective Date. 

       (c) With effect from the
Resignation Effective Date or the Removal Effective Date (as applicable) (1) the
retiring or removed Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the
case of any collateral security held by the Administrative Agent on behalf of
the Lenders or an L/C Issuer under any of the Loan Documents, the retiring or
removed Administrative Agent shall continue to hold such collateral security
until such time as a successor Administrative Agent is appointed) and (2) except
for any indemnity payments or other amounts then owed to the retiring or removed
Administrative Agent, all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by
or to each Lender and each L/C Issuer directly, until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as provided for above.
Upon the acceptance of a successor’s appointment as Administrative Agent
hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or removed)
Administrative Agent (other than as provided in Section 3.01(g) and other than any
rights to indemnity payments or other amounts owed to the retiring or removed
Administrative Agent as of the Resignation Effective Date or the Removal
Effective Date, as applicable), and the retiring or removed Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under
the other Loan Documents (if not already discharged therefrom as provided above
in this Section). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
retiring or removed Administrative Agent’s resignation or removal hereunder and
under the other Loan Documents, the provisions of this Article and
Section 10.04 shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring or removed Administrative Agent was acting as Administrative Agent.


79 







       (d)
Any resignation by Bank of America as
Administrative Agent pursuant to this Section shall also constitute its
resignation as L/C Issuer and Swing Line Lender. If Bank of America resigns as
an L/C Issuer, it shall retain all the rights, powers, privileges and duties of
an L/C Issuer hereunder with respect to all Letters of Credit 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). If Bank of America resigns as Swing Line Lender, it shall retain all
the rights of the Swing Line Lender provided for hereunder with respect to Swing
Line Loans made by it and outstanding as of the effective date of such
resignation, including the right to require the Lenders to make Base Rate Loans
or fund risk participations in outstanding Swing Line Loans pursuant to
Section 2.04(c). Upon the appointment by the Borrower of a successor L/C Issuer or Swing
Line Lender hereunder (which successor shall in all cases be a Lender other than
a Defaulting Lender), (a) such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties of the retiring L/C Issuer or
Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line
Lender shall be discharged from all of their respective duties and obligations
hereunder or under the other Loan Documents, and (c) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make other arrangements
satisfactory to Bank of America to effectively assume the obligations of Bank of
America with respect to such Letters of Credit. 

      
9.07 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender and each L/C Issuer
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender and
each L/C Issuer also acknowledges that it will, independently and without
reliance upon the Administrative Agent or any other Lender or any of their
Related Parties and based on such documents and information as it shall from
time to time deem appropriate, continue to make its own decisions in taking or
not taking action under or based upon this Agreement, any other Loan Document or
any related agreement or any document furnished hereunder or thereunder.


      
9.08 No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the Book Managers,
Arrangers, Syndication Agent or Documentation Agents listed on the cover page
hereof shall have any powers, duties or responsibilities under this Agreement or
any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or an L/C Issuer hereunder. 

      
9.09 Administrative Agent May File Proofs of
Claim. In case of the pendency of any
proceeding under any Debtor Relief Law or any other judicial proceeding relative
to the Borrower, the Administrative 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 Administrative
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, each L/C Issuer and the Administrative Agent (including any claim
for the reasonable compensation, expenses, disbursements and advances of the
Lenders, each L/C Issuer and the Administrative Agent and their respective
agents and counsel and all other amounts due the Lenders, each L/C Issuer and
the Administrative Agent under Sections 2.03(h) and (i), 2.09 and 10.04) allowed
in such judicial proceeding; and

80 







       (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 and each L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders and
each L/C Issuer, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections
2.09 and 10.04. 

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

ARTICLE X. 
MISCELLANEOUS


      
10.01 Amendments, Etc. No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by the Borrower therefrom, shall be
effective unless in writing signed by the Required Lenders and the Borrower and
acknowledged by the Administrative 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 8.02) without the written
consent of such Lender; 

       (c)
postpone any date fixed by this Agreement or any
other Loan Document for any payment (excluding mandatory prepayments) of
principal, interest, fees or other amounts due to the Lenders (or any of them)
hereunder or under any other Loan 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 Loan 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 or Letter of Credit Fees
at the Default Rate; 

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

81 







       (f)
amend Section
1.06 or the definition of “Alternative
Currency” without the written consent of each Lender; or 

       (g)
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;

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 any L/C Issuer under
this Agreement or any Issuer Document relating to any Letter of Credit issued or
to be issued by it; (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Swing Line Lender in addition to the Lenders required
above, affect the rights or duties of the Swing Line Lender under this
Agreement; (iii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document and (iv) the Fee Letter 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
(and any amendment, waiver or consent which by its terms requires the consent of
all Lenders or each affected Lender may be effected with the consent of the
applicable Lenders other than Defaulting Lenders), except that (x) the
Commitment of any Defaulting Lender may not be increased or extended without the
consent of such Lender and (y) any waiver, amendment or modification requiring
the consent of all Lenders or each affected Lender that by its terms affects any
Defaulting Lender disproportionately adversely relative to other affected
Lenders shall require the consent of such Defaulting Lender. 

      
10.02 Notices; Effectiveness; Electronic
Communication. 

      
(a) Notices
Generally. Except in the case of notices and
other communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by facsimile as follows,
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 Administrative Agent, an
L/C Issuer or the Swing Line Lender, to the address, facsimile number,
electronic mail address or telephone number specified for such Person on
Schedule 10.02; and 

       (ii)
if to any other Lender, to the address, facsimile
number, electronic mail address or telephone number specified in its
Administrative Questionnaire (including, as appropriate, notices delivered
solely to the Person designated by a Lender on its Administrative Questionnaire
then in effect for the delivery of notices that may contain material non-public
information relating to the Borrower). 

Notices and other communications sent
by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices and other
communications sent by facsimile shall be deemed to have been given when sent
(except that, if not given during normal business hours for the recipient, shall
be deemed to have been given at the opening of business on the next Business Day
for the recipient). Notices and other communications delivered through
electronic communications to the extent provided in
subsection (b) below, shall be effective as provided in such subsection (b). 

82 







       (b)
Electronic Communications. Notices and other communications to the Lenders and each L/C
Issuer hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided that the foregoing shall not
apply to notices to any Lender or any L/C Issuer pursuant to Article II if such Lender
or such L/C Issuer, as applicable, has notified the Administrative Agent that it
is incapable of receiving notices under such Article by electronic
communication. The Administrative Agent, the Swing Line Lender, each L/C Issuer
or the Borrower may each, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such
procedures may be limited to particular notices or communications. 

      
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender’s receipt of an acknowledgement from the intended recipient (such as by
the “return receipt requested” function, as available, return e-mail or other
written acknowledgement), and (ii) notices or communications posted to an
Internet or intranet website shall be deemed received upon the deemed receipt by
the intended recipient at its e-mail address as described in the foregoing
clause (i) of notification that such notice or communication is available and
identifying the website address therefor; provided that, for both
clauses (i) and (ii), if such notice, email or other communication is not sent during the
normal business hours of the recipient, such notice, email or communication
shall be deemed to have been sent at the opening of business on the next
business day for the recipient. 

       (c)
The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM
LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES
OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall
the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability
to the Borrower, any Lender, any L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind
(whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of
Borrower Materials through the Internet. 

       (d)
Change of Address, Etc. Each of the Borrower, the Administrative Agent, each L/C
Issuer and the Swing Line Lender may change its address, facsimile or telephone
number for notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address, facsimile or telephone
number for notices and other communications hereunder by notice to the Borrower,
the Administrative Agent, each L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to
time to ensure that the Administrative Agent has on record (i) an effective
address, contact name, telephone number, facsimile number and electronic mail
address to which notices and other communications may be sent and (ii) accurate
wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all
times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States
Federal and state securities Laws, to make reference to Borrower Materials that
are not made available through the “Public Side Information” portion of the
Platform and that may contain material non-public information with respect to
the Borrower or its securities for purposes of United States Federal or state
securities laws. 

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       (e)
Reliance by Administrative Agent, L/C Issuers
and Lenders. The Administrative Agent, each
L/C Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic or electronic Committed Loan Notices, Letter of Credit
Applications and Swing Line 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
the Administrative Agent, each L/C Issuer, each Lender and the Related Parties
of each of them 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 telephonic communications with
the Administrative Agent may be recorded by the Administrative Agent, and each
of the parties hereto hereby consents to such recording. 

      
10.03 No Waiver; Cumulative Remedies;
Enforcement. No failure by any Lender or
the Administrative Agent to exercise, and no delay by any such Person in
exercising, any right, remedy, power or privilege hereunder or under any other
Loan Document 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, and
provided under each other Loan Document, are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by Law. 

Notwithstanding anything to the
contrary contained herein or in any other Loan Document, the authority to
enforce rights and remedies hereunder and under the other Loan Documents against
the Borrower or any of them shall be vested exclusively in, and all actions and
proceedings at law in connection with such enforcement shall be instituted and
maintained exclusively by, the Administrative Agent in accordance with
Section 8.02 for the benefit of all the Lenders and the L/C Issuers; provided, however, that the foregoing
shall not prohibit (a) the Administrative Agent from exercising on its own
behalf the rights and remedies that inure to its benefit (solely in its capacity
as Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuers or the Swing Line Lender from exercising the rights and remedies
that inure to its benefit (solely in their respective capacities as an L/C
Issuer or the Swing Line Lender, as the case may be) hereunder and under the
other Loan Documents, (c) any Lender from exercising setoff rights in accordance
with Section 10.08 (subject to the terms of Section
2.13), or (d) any Lender from filing proofs
of claim or appearing and filing pleadings on its own behalf during the pendency
of a proceeding relative to the Borrower under any Debtor Relief Law; and
provided,
further,
that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the
rights otherwise ascribed to the Administrative Agent pursuant to
Section 8.02 and (ii) in addition to the matters set forth in clauses (b),
(c) and
(d) of the
preceding proviso and subject to Section
2.13, any Lender may, with the consent of the
Required Lenders, enforce any rights and remedies available to it and as
authorized by the Required Lenders. 

      
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       10.04 Expenses; Indemnity; Damage
Waiver.

       (a)
Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates (including the
reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit
facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be
consummated), (ii) all reasonable out-of-pocket expenses incurred by each L/C
Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or any
L/C Issuer (including the fees, charges and disbursements of any counsel for the
Administrative Agent, any Lender or any L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or (B) in
connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.

       (b)
Indemnification by the
Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and each L/C
Issuer, and each Related Party of any of the foregoing Persons (each such Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (including the
fees, charges and disbursements of any counsel for any Indemnitee), incurred by
any Indemnitee or asserted against any Indemnitee by any Person (including the
Borrower) other than such Indemnitee and its Related Parties arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder, the consummation of the transactions
contemplated hereby or thereby, or, in the case of the Administrative Agent (and
any sub-agent thereof) and its Related Parties only, the administration of this
Agreement and the other Loan Documents (including in respect of any matters
addressed in Section 3.01), (ii) any 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), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower, and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses (x)
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or (y) result from a claim brought by the Borrower against an
Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or
under any other Loan Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction. Without limiting the provisions of Section 3.01(c), this
Section 10.04(b) shall not apply with respect to Taxes other than any Taxes that
represent losses, claims, damages, etc. arising from any non-Tax
claim. 

85 







       (c)
Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be
paid by it to the Administrative Agent (or any sub-agent thereof), any L/C
Issuer, the Swing Line Lender or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), such L/C Issuer, the Swing Line Lender or such Related Party, as the
case may be, such Lender’s pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought based on each
Lender’s share of the Total Credit Exposure at such time) of such unpaid amount
(including any such unpaid amount in respect of a claim asserted by such
Lender), such payment to be made severally among them based on such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought), provided further that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent (or any
such sub-agent), any L/C Issuer or the Swing Line Lender in its capacity as
such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent), any L/C Issuer or the Swing Line
Lender in connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 2.12(d). 

       (d) Waiver of Consequential
Damages, Etc. To the fullest extent permitted
by applicable Law, the Borrower shall not assert, and hereby waives, and
acknowledges that no other Person shall have, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement, any other Loan Document or any
agreement or instrument contemplated hereby, the transactions contemplated
hereby or thereby, any Loan or Letter of Credit or the use of the proceeds
thereof. No Indemnitee referred to in subsection (b) above shall be liable
for any damages arising from the use by unintended recipients of any information
or other materials distributed to such unintended recipients by such Indemnitee
through telecommunications, electronic or other information transmission systems
in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such
Indemnitee as determined by a final and nonappealable judgment of a court of
competent jurisdiction. 

       (e) Payments. All amounts due under this Section shall be payable not
later than ten Business Days after demand therefor. 

       (f) Survival. The agreements in this Section and the indemnity provisions
of Section 10.02(e) shall survive the resignation of the Administrative Agent, any
L/C Issuer and the Swing Line Lender, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations. 

      
10.05 Payments Set Aside. To the extent that
any payment by or on behalf of the Borrower is made to the Administrative Agent,
any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any
Lender exercises its right of setoff, and such payment or the proceeds of such
setoff 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 Administrative Agent, such L/C Issuer or such
Lender in its 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 setoff had
not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to
the Administrative Agent upon demand its applicable share (without duplication)
of any amount so recovered from or repaid by the Administrative 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 applicable Overnight Rate from time to time in
effect, in the applicable currency of such recovery or
payment. The obligations of the Lenders and each L/C Issuer under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement. 

86 







      
10.06 Successors and Assigns. 

       (a) Successors and Assigns
Generally. 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 the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an 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, or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of subsection (f) 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
Related Parties of each of the Administrative Agent, each L/C Issuer and the
Lenders) any legal or equitable right, remedy or claim under or by reason of
this Agreement. 

       (b) Assignments by
Lenders. Any Lender may at any time assign to
one or more 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 and in
Swing Line Loans) at the time owing to it); provided that any such assignment
shall be subject to the following conditions: 

       (i) Minimum
Amounts. 

       (A) in the case of an assignment
of the entire remaining amount of the assigning Lender’s Commitment or
contemporaneous assignments to related Approved Funds that equal at least the
amount specified in paragraph
(b)(i)(B) of this Section in the aggregate
and the Loans at the time owing to it or in the case of an assignment to a
Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be
assigned; and 

       (B) in any case not described in
subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment
(which for this purpose includes Loans outstanding thereunder) or, if the
Commitment is not then in effect, the principal outstanding balance of the Loans
of the assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is delivered
to the Administrative 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 Administrative 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) Proportionate
Amounts. 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, except that this clause (ii) shall not apply
to the Swing Line Lender’s rights and obligations in respect of Swing Line
Loans; 

87 







       (iii)
Required Consents. No consent shall be required for any assignment except to the extent
required by subsection (b)(i)(B)
of this Section and, in addition: 

       (A)
the consent of the Borrower (such consent not to
be unreasonably withheld or delayed) shall be required unless (1) an Event of
Default has occurred and is continuing at the time of such assignment or (2)
such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided
that the Borrower shall be deemed to have consented to any such assignment
unless it shall object thereto by written notice to the Administrative Agent
within ten Business Days after having received notice thereof; 

       (B)
the consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed) shall be required if such
assignment is to a Person that is not a Lender, an Affiliate of such Lender or
an Approved Fund with respect to such Lender; and

       (C)
the consent of each L/C Issuer and the consent of
the Swing Line Lender (such consent not to be unreasonably withheld or delayed)
shall be required for any assignment. 

       (iv)
Assignment and Assumption. The parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however, that the
Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.

       (v)
No Assignment to Certain
Persons. No such assignment shall be made (A)
to the Borrower or any of the Borrower’s Affiliates or Subsidiaries, (B) to any
Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a
Lender hereunder, would constitute any of the foregoing Persons described in
this clause (B), or (C) to a natural Person. 

       (vi)
Certain Additional Payments. In connection with any assignment of rights and obligations
of any Defaulting Lender hereunder, no such assignment shall be effective unless
and until, in addition to the other conditions thereto set forth herein, the
parties to the assignment shall make such additional payments to the
Administrative Agent in an aggregate amount sufficient, upon distribution
thereof as appropriate (which may be outright payment, purchases by the assignee
of participations or subparticipations, or other compensating actions, including
funding, with the consent of the Borrower and the Administrative Agent, the
applicable pro rata share of Loans previously requested but not funded by the
Defaulting Lender, to each of which the applicable assignee and assignor hereby
irrevocably consent), to (x) pay and satisfy in full all payment liabilities
then owed by such Defaulting Lender to the Administrative Agent, any L/C Issuer
or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund
as appropriate) its full pro rata share of all Loans and participations in
Letters of Credit and Swing Line Loans in accordance with its Applicable
Percentage. Notwithstanding the foregoing, in the event that any assignment of
rights and obligations of any Defaulting Lender hereunder shall become effective
under applicable Law without compliance with the provisions of this paragraph,
then the assignee of such interest shall be deemed to be a Defaulting Lender for
all purposes of this Agreement until such compliance occurs.

88 







Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) of this Section, from
and after the effective date specified in each Assignment and Assumption, the
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, and 10.04 with respect to facts and circumstances occurring prior to the effective
date of such assignment; provided, that except to the extent
otherwise expressly agreed by the affected parties, no assignment by a
Defaulting Lender will constitute a waiver or release of any claim of any party
hereunder arising from that Lender’s having been a Defaulting Lender. Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender. 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)
Register.
The Administrative Agent, acting solely for this purpose as an agent of the
Borrower (and such agency being solely for tax purposes), shall maintain at the
Administrative Agent’s Office a copy of each Assignment and Assumption delivered
to it (or the equivalent thereof in electronic form) and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts (and stated interest) 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 absent manifest
error, and the Borrower, the Administrative Agent and the Lenders shall 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. 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)
Participations. Any Lender may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural Person, a Defaulting Lender 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 and/or Swing Line Loans) 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 Administrative
Agent, the Lenders and each L/C Issuer shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. For the avoidance of doubt, each Lender shall
be responsible for the indemnity under Section
10.04(c) without regard to the existence of
any participation. 

89 







      
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 affects such Participant. The
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 (it being understood that the documentation required under
Section 3.01(e) shall be delivered to the Lender who sells the participation) 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 same extent as if it were a Lender and
had acquired its interest by assignment pursuant to paragraph (b) of this Section;
provided
that such Participant (A) agrees to be subject to the provisions of
Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section and (B)
shall not be entitled to receive any greater payment under Sections 3.01 or
3.04, with
respect to any participation, than the Lender from whom it acquired the
applicable participation would have been entitled to receive, except to the
extent such entitlement to receive a greater payment results from a Change in
Law that occurs after the Participant acquired the applicable participation.
Each Lender that sells a participation agrees, at the Borrower’s request and
expense, to use reasonable efforts to cooperate with the Borrower to effectuate
the provisions of Sections
3.06 and 10.13 with respect to any Participant.
To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees
to be subject to Section 2.13 as though it were a Lender. Each Lender that sells a
participation shall, acting solely for this purpose as an agent of the Borrower,
maintain a register on which it enters the name and address of each Participant
and the principal amounts (and stated interest) of each Participant’s interest
in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender
shall have any obligation to disclose all or any portion of the Participant
Register (including the identity of any Participant or any information relating
to a Participant’s interest in any commitments, loans, letters of credit or its
other obligations under any Loan Document) to any Person except to the extent
that such disclosure is necessary to establish that such commitment, loan,
letter of credit or other obligation is in registered form under Section
5f.103-1(c) of the United States Treasury Regulations. The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each Person whose name is recorded in the Participant Register as
the owner of such participation for all purposes of this Agreement
notwithstanding any notice to the contrary. For the avoidance of doubt, the
Administrative Agent (in its capacity as Administrative Agent) shall have no
responsibility for maintaining a Participant Register. 

       (e)
Certain Pledges. 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 or any other central banking
authority; 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. 

       (f)
Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein,
if at any time Bank of America or JPMorgan assigns all of its Commitment and Loans pursuant to subsection (b) above, Bank
of America or JPMorgan, as applicable, may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as an L/C Issuer
and/or (ii) Bank of America may, upon 30 days’ notice to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as an L/C Issuer or Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor
L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Borrower to appoint any such
successor shall affect the resignation of Bank of America or JPMorgan as L/C Issuer or Bank of America as Swing Line Lender, as
the case may be. If Bank of America or JPMorgan resigns as L/C Issuer, it shall retain all the rights, powers, privileges and
duties of an L/C Issuer hereunder with respect to all Letters of Credit 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 Committed
Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing
Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate
Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment
of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer
shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to Bank of America or JPMorgan to effectively assume the obligations of Bank of America or
JPMorgan, as the case may be, with respect to such Letters of Credit. 

90 







      
10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the Lenders and the L/C
Issuers agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates and to
its Related Parties (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), (b) to the
extent required or requested by any regulatory authority purporting to have
jurisdiction over such Person or its Related Parties (including any
self-regulatory authority, such as the National Association of Insurance
Commissioners), (c) to the extent required by applicable Laws or regulations or
by any subpoena or similar legal process, (d) to any other party hereto, (e) in
connection with the exercise of any remedies hereunder or under any other Loan
Document or any action or proceeding relating to this Agreement or any other
Loan Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of this
Section, to (i) any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights and obligations under this Agreement or
(ii) any actual or prospective party (or its Related Parties) to any swap,
derivative or other transaction under which payments are to be made by reference
to the Borrower and its obligations, this Agreement or payments hereunder, (g)
on a confidential basis to (i) any rating agency in connection with rating the
Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii)
the CUSIP Service Bureau or any similar agency in connection with the issuance
and monitoring of CUSIP numbers or other market identifiers with respect to the
credit facilities provided hereunder, (h) with the consent of the Borrower or
(i) to the extent such Information (x) becomes publicly available other than as
a result of a breach of this Section or (y) becomes available to the
Administrative Agent, any Lender, any L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower. For
purposes of this Section, “Information” means all information received from the
Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of
their respective businesses, other than any such information that is available
to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential
basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case
of information received from the Borrower or any Subsidiary after the date
hereof, such information is clearly identified at the time of delivery as
confidential. 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 exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information. 

       Each of the
Administrative Agent, the Lenders and each L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle such
material non-public information in accordance with applicable Law, including
United States Federal and state securities Laws. 

91 







      
10.08 Right of Setoff. If an Event of
Default shall have occurred and be continuing and any amount under any Loan
Document is then due and payable by the Borrower (whether as a result of
maturity, acceleration, or otherwise), each Lender, each L/C Issuer and each of
their respective Affiliates is hereby authorized at any time and from time to
time, to the fullest extent permitted by applicable Law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final,
in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, such L/C Issuer or any such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement or any other Loan Document to such Lender or such L/C Issuer or their
respective Affiliates, irrespective of whether or not such Lender, L/C Issuer or
Affiliate shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Borrower may be contingent or
unmatured or are owed to a branch, office or Affiliate of such Lender or such
L/C Issuer different from the branch, office or Affiliate holding such deposit
or obligated on such indebtedness; provided, that in the event that any
Defaulting Lender shall exercise any such right of setoff, (x) all amounts so
set off shall be paid over immediately to the Administrative Agent for further
application in accordance with the provisions of Section 2.15 and, pending such
payment, shall be segregated by such Defaulting Lender from its other funds and
deemed held in trust for the benefit of the Administrative Agent, the L/C
Issuers and the Lenders, and (y) the Defaulting Lender shall provide promptly to
the Administrative Agent a statement describing in reasonable detail the
Obligations owing to such Defaulting Lender as to which it exercised such right
of setoff. The rights of each Lender, each L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies
(including other rights of setoff) that such Lender, such L/C Issuer or their
respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify
the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.

      
10.09 Interest Rate Limitation.
Notwithstanding anything to the contrary contained in any Loan Document, the
interest paid or agreed to be paid under the Loan Documents shall not exceed the
maximum rate of non-usurious interest permitted by applicable Law (the
“Maximum Rate”). If the Administrative 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 Administrative 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. 

      
10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties
hereto in different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. This
Agreement, the other Loan Documents, and any separate letter agreements with
respect to fees payable to the Administrative Agent or any L/C Issuer,
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed
by the Administrative Agent and when the Administrative Agent shall have
received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. Delivery of an executed counterpart of a
signature page of this Agreement by facsimile or other electronic imaging means
(e.g. “pdf” or “tif”) shall be effective as delivery of a manually executed
counterpart of this Agreement. 

92 







      
10.11 Survival of Representations and Warranties. All representations and warranties made hereunder and in any other Loan
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 Administrative Agent and each Lender, regardless of any investigation made
by the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative 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.


      
10.12 Severability. If any provision of this
Agreement or the other Loan 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 Loan 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. Without limiting the
foregoing provisions of this Section
10.12, if and to the extent that the
enforceability of any provisions in this Agreement relating to Defaulting
Lenders shall be limited by Debtor Relief Laws, as determined in good faith by
the Administrative Agent, the L/C Issuers or the Swing Line Lender, as
applicable, then such provisions shall be deemed to be in effect only to the
extent not so limited. 

      
10.13 Replacement of Lenders. If the
Borrower is entitled to replace a Lender pursuant to the provisions of
Section 3.06, or if any Lender is a Defaulting Lender or a Non-Consenting Lender or
if any other circumstance exists hereunder that gives the Borrower the right to
replace a Lender as a party hereto, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in, and consents required by,
Section 10.06), all of its interests, rights (other than its existing rights to
payments pursuant to Sections
3.01 and 3.04) and obligations under this
Agreement and the related Loan Documents to an Eligible Assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that: 

       (a) the Borrower shall have paid
to the Administrative Agent the assignment fee (if any) specified in
Section 10.06(b); 

       (b) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and L/C Advances, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents (including any
amounts under Section 3.05) from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts); 

       (c) in the case of any such
assignment resulting from a claim for compensation under Section 3.04 or payments
required to be made pursuant to Section
3.01, such assignment will result in a
reduction in such compensation or payments thereafter; 

       (d) such assignment does not
conflict with applicable Laws; and 

       (e) in the case of an assignment
resulting from a Lender becoming a Non-Consenting Lender, the applicable
assignee shall have consented to the applicable amendment, waiver or consent,
provided that the failure by such Lender being replaced to execute and deliver
an Assignment and Assumption shall not impair the validity of the removal of
such Lender, and the mandatory assignment of such Lender’s
Commitments and outstanding Loans and participations in outstanding Letters of
Credit pursuant to this Section
10.13 shall nonetheless be effective without
the execution by such Lender of an Assignment and Assumption, but otherwise
subject to the requirements (including the other referenced requirements of
Section 10.06(b)) contained in this Section
10.13. 

93 










     A Lender shall
not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.


    
10.14
Governing Law; Jurisdiction;
Etc. 

    
(a) GOVERNING LAW. THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION
(WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER
LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED
HEREBY AND THEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK. 

    
(b) SUBMISSION TO JURISDICTION. THE
BORROWER IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY
ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR
EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE
AGENT, ANY LENDER, ANY L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY
WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF
NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF
THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND
EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE
JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH
FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY
LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY
RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION. 

    
(c) WAIVER OF VENUE. THE BORROWER
IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS
SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE
MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

94 







    
(d) SERVICE OF PROCESS. EACH PARTY HERETO
IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN
SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. 

    
10.15
Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. 

    
10.16
No Advisory or Fiduciary
Responsibility. In connection with all
aspects of each transaction contemplated hereby (including in connection with
any amendment, waiver or other modification hereof or of any other Loan
Document), the Borrower acknowledges and agrees, and acknowledges its
Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent, the Arrangers and
the Lenders are arm’s-length commercial transactions between the Borrower and
its Affiliates, on the one hand, and the Administrative Agent, the Arrangers and
the Lenders, on the other hand, (B) the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate,
and (C) the Borrower is capable of evaluating, and understands and accepts, the
terms, risks and conditions of the transactions contemplated hereby and by the
other Loan Documents; (ii) (A) the Administrative Agent, the Arrangers and each
Lender is and has been acting solely as a principal and, except as expressly
agreed in writing by the relevant parties, has not been, is not, and will not be
acting as an advisor, agent or fiduciary for the Borrower or any of its
Affiliates, or any other Person and (B) neither the Administrative Agent, the
Arrangers nor any Lender has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those
obligations expressly set forth herein and in the other Loan Documents; and
(iii) the Administrative Agent, the Arrangers and the Lenders and their
respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrower and its Affiliates, and
neither the Administrative Agent, the Arrangers, nor any Lender has any
obligation to disclose any of such interests to the Borrower or any of its
Affiliates. To the fullest extent permitted by Law, the Borrower hereby waives
and releases any claims that it may have against the Administrative Agent, the
Arrangers or any Lender with respect to any breach or alleged breach of agency
or fiduciary duty in connection with any aspect of any transaction contemplated
hereby. 

    
10.17
Electronic Execution of Assignments and Certain
Other Documents. The words “execute,”
“execution,” “signed,” “signature,” and words of like import in any Assignment
and Assumption or in any amendment or other modification hereof (including
waivers and consents) shall be deemed to include electronic signatures, the
electronic matching of assignment terms and contract formations on electronic
platforms approved by the Administrative Agent, or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state Laws based on the Uniform Electronic Transactions
Act.

95 







    
10.18
USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Act”), it
is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. The Borrower
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent or
such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations,
including the Act. 

    
10.19
Judgment Currency. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Loan Document in one
currency into another currency, the rate of exchange used shall be that at which
in accordance with normal banking procedures the Administrative Agent could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the Borrower
in respect of any such sum due from it to the Administrative Agent or any Lender
hereunder or under the other Loan Documents shall, notwithstanding any judgment
in a currency (the “Judgment
Currency”) other than that in which such sum
is denominated in accordance with the applicable provisions of this Agreement
(the “Agreement Currency”), be discharged only to the
extent that on the Business Day following receipt by the Administrative Agent or
such Lender, as the case may be, of any sum adjudged to be so due in the
Judgment Currency, the Administrative Agent or such Lender, as the case may be,
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency. If the amount of the Agreement Currency so purchased
is less than the sum originally due to the Administrative Agent or any Lender
from the Borrower in the Agreement Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the
Administrative Agent or such Lender, as the case may be, against such loss. If
the amount of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent or any Lender in such currency, the
Administrative Agent or such Lender, as the case may be, agrees to return the
amount of any excess to the Borrower (or to any other Person who may be entitled
thereto under applicable Law). 

[Signature Pages Follow.]

96 







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


	PALL CORPORATION
	 
	By:	/s/ R. Brent
      Jones
	 	 
		 
	Name:  
        	R. Brent
      Jones
		 
		 
	Title:	VP Finance &
      Treasurer
		 




 

 

 

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Pall Corporation
2013 
Credit Agreement 








	BANK OF AMERICA, N.A., as
	Administrative Agent
	 
	By:	/s/ Christine
      Trotter
	 	 
		 
	Name:  
        	Christine
      Trotter
		 
		 
	Title:	Assistant Vice
      President
		 




 

 

 

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	BANK OF AMERICA, N.A., as
      a Lender, L/C Issuer
	and Swing Line Lender
	 
	By:	/s/ Martha
      Novak
	 	 
		 
	Name:  
        	Martha
      Novak
		 
		 
	Title:	Senior Vice
      President
		 




 

 

 

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	JPMORGAN CHASE BANK, N.A., as a Lender and
	L/C Issuer
	 
	By:	/s/ Alicia
      Shreibstein
	 	 
		 
	Name:  
        	Alicia
      Schreibstein
		 
		 
	Title:	Vice
      President
		 




 

 

 

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	WELLS FARGO BANK, NATIONAL
	ASSOCIATION, as a Lender
	 
	By:	/s/ Patricia
      Santoli
	 	 
		 
	Name:  
        	Patricia
      Santoli
		 
		 
	Title:	Vice
      President
		 




 

 

 

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	HSBC BANK USA, NATIONAL ASSOCIATION, as
	a Lender
	 
	By:	/s/ William
      Conlan
	 	 
		 
	Name:  
        	William
      Conlan
		 
		 
	Title:	Senior Vice
      President
		 




 

 

 

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	THE BANK OF TOKYO-MITSUBISHI UFJ,
  LTD.,
	as a Lender
	 
	By:	/s/ Jaime
      Sussman
	 	 
		 
	Name:  
        	Jaime
      Sussman
		 
		 
	Title:	VP
		 




 

 

 

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	SUMITOMO MITSUI BANKING CORPORATION,
	as a Lender
	 
	By:	/s/ David
      Kee
	 	 
		 
	Name:  
        	David
    Kee
		 
		 
	Title:	Managing
      Director
		 




 

 

 

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	TD BANK, N.A., as a
      Lender
	  
	By:	/s/ Shreya
      Shah
	 	 
		 
	Name:  
        	Shreya
      Shah
		 
		 
	Title:	Senior Vice
      President
		 




 

 

 

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	SUNTRUST BANK, as a
      Lender
	  
	By:	/s/ Johnetta
      Bush
	 	 
		 
	Name:  
        	Johnetta
      Bush
		 
		 
	Title:	Vice
      President
		 




 

 

 

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	AUSTRALIA AND NEW ZEALAND BANKING
	GROUP LIMITED,
      as a Lender
	  
	By:	/s/ Robert
      Grillo
	 	 
		 
	Name:  
        	Robert
      Grillo
		 
		 
	Title:	Director
		 




 

 

 

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	BNP PARIBAS, as a
      Lender
	   
	By:	/s/ Duane
      Helkowski
	 	  
		  
	Name:  
        	Duane
      Helkowski
		  
		  
	Title:	Managing
      Director
		  
		  
		  
	By:	/s/ Paul
      Zelezik
		 
		 
	Name:	Paul
      Zelezik
		 
		 
	Title:	Vice
      President
		 




 

 

 

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	ING BANK N.V., DUBLIN BRANCH, as a Lender
	   
	By:	/s/ Shaun
      Hawley
	 	  
		  
	Name:  
        	Shaun
      Hawley
		  
		  
	Title:	Vice
      President
		  
		  
		  
	By:	/s/ Aidan
      Neill
		 
		 
	Name:	Aidan
      Neill
		 
		 
	Title:	Director
		 




 

 

 

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	COMMERZBANK AG NEW YORK BRANCH, as a
	Lender
	   
	By:	/s/ Diane
      Pockaj
	 	  
		  
	Name:  
        	Diane
      Pockaj
		  
		  
	Title:	Managing
      Director
		  
		  
		  
	By:	/s/ Matthew
      Havens
		 
		 
	Name:	Matthew
      Havens
		 
		 
	Title:	Vice
      President
		 




 

 

 

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