exv4w9



 






EXECUTION COPY




Exhibit 4.9




$400,000,000




CREDIT AGREEMENT




dated as of




March 11, 2005




among




CNF INC.,

as Borrower




The Banks Party Hereto




PNC BANK, NATIONAL ASSOCIATION

as Syndication Agent




LASALLE BANK NATIONAL ASSOCIATION.,

U.S. BANK NATIONAL ASSOCIATION,

HARRIS TRUST AND SAVINGS BANK

and

BNP PARIBAS,

as Co-Documentation Agents




and




THE BANK OF NEW YORK,

as Administrative Agent














BNY CAPITAL MARKETS, INC.

and

PNC BANK, NATIONAL ASSOCIATION

as Co-Lead Arrangers




BNY CAPITAL MARKETS, INC.

as Sole Book Runner




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page
	ARTICLE 1 DEFINITIONS
	 	 	 	 
	Section 1.01 Definitions
	 	 	1	 
	Section 1.02 Accounting Terms and Determinations
	 	 	15	 
	Section 1.03 Types of Borrowings
	 	 	15	 
	 
	 	 	 	 
	ARTICLE 2 THE CREDITS
	 	 	 	 
	Section 2.01 Commitments to Lend
	 	 	16	 
	Section 2.02 Notice of Committed Borrowing
	 	 	18	 
	Section 2.03 Money Market Borrowings
	 	 	19	 
	Section 2.04 Notice to Banks; Funding of Loans; Additional Provisions Relating to Swingline Loans
	 	 	22	 
	Section 2.05 Notes; Loan Accounts; Records
	 	 	24	 
	Section 2.06 Maturity of Loans
	 	 	25	 
	Section 2.07 Interest Rates
	 	 	25	 
	Section 2.08 Fees
	 	 	27	 
	Section 2.09 Optional Termination or Reduction of Commitments
	 	 	28	 
	Section 2.10 Method of Electing Interest Rates
	 	 	28	 
	Section 2.11 Mandatory Termination of Commitments
	 	 	29	 
	Section 2.12 Optional Payments
	 	 	29	 
	Section 2.13 General Provisions as to Payment
	 	 	30	 
	Section 2.14 Funding Losses
	 	 	30	 
	Section 2.15 Computation of Interest and Fees
	 	 	31	 
	Section 2.16 Letters of Credit
	 	 	31	 
	Section 2.17 Maximum Interest Rate
	 	 	35	 
	 
	 	 	 	 
	ARTICLE 3 CONDITIONS
	 	 	 	 
	Section 3.01 Conditions to Effectiveness
	 	 	36	 
	Section 3.02 Credit Extensions
	 	 	37	 
	 
	 	 	 	 
	ARTICLE 4 REPRESENTATIONS AND WARRANTIES
	 	 	 	 
	Section 4.01 Corporate Existence and Power
	 	 	37	 
	Section 4.02 Corporate and Governmental Authorization; No Contravention
	 	 	38	 
	Section 4.03 Binding Effect
	 	 	38	 
	Section 4.04 Financial Information
	 	 	38	 
	Section 4.05 Litigation
	 	 	39	 
	Section 4.06 Compliance with ERISA
	 	 	39	 
	Section 4.07 Environmental Matters
	 	 	39	 
	Section 4.08 Taxes
	 	 	40	 
	Section 4.09 Subsidiaries
	 	 	40	 
	Section 4.10 Not an Investment Company; Federal Reserve Regulations
	 	 	40	 
	Section 4.11 Full Disclosure
	 	 	40	 
	 
	 	 	 	 
	ARTICLE 5 COVENANTS
	 	 	 	 
	Section 5.01 Information
	 	 	41	 
	Section 5.02 Payment of Obligations
	 	 	43	 
	Section 5.03 Maintenance of Property; Insurance
	 	 	43	 






i









 






	 	 	 	 	 
	 	 	Page
	Section 5.04 Conduct of Business and Maintenance of Existence
	 	 	43	 
	Section 5.05 Compliance with Laws
	 	 	44	 
	Section 5.06 Inspection of Property, Books and Records
	 	 	44	 
	Section 5.07 Debt
	 	 	44	 
	Section 5.08 Leverage Ratio
	 	 	45	 
	Section 5.09 Negative Pledge
	 	 	46	 
	Section 5.10 Consolidations, Mergers and Sales of Assets
	 	 	48	 
	Section 5.11 Use of Proceeds
	 	 	49	 
	Section 5.12 Fixed Charge Coverage
	 	 	49	 
	 
	 	 	 	 
	ARTICLE 6 DEFAULTS
	 	 	 	 
	Section 6.01 Events of Default
	 	 	50	 
	Section 6.02 Notice of Default
	 	 	52	 
	 
	 	 	 	 
	ARTICLE 7 THE AGENT AND THE CO-AGENTS
	 	 	 	 
	Section 7.01 Appointment and Authorization
	 	 	52	 
	Section 7.02 Agent and Affiliates
	 	 	52	 
	Section 7.03 Action by Agent
	 	 	53	 
	Section 7.04 Consultation with Experts; Delegation of Duties
	 	 	53	 
	Section 7.05 Liability of Agent
	 	 	53	 
	Section 7.06 Reliance by Agent
	 	 	53	 
	Section 7.07 Notice of Default
	 	 	54	 
	Section 7.08 Indemnification
	 	 	54	 
	Section 7.09 Credit Decision
	 	 	54	 
	Section 7.10 Successor Agent
	 	 	55	 
	Section 7.11 Additional Agents
	 	 	55	 
	 
	 	 	 	 
	ARTICLE 8 CHANGE IN CIRCUMSTANCES
	 	 	 	 
	Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair
	 	 	55	 
	Section 8.02 Illegality
	 	 	56	 
	Section 8.03 Increased Cost and Reduced Return
	 	 	57	 
	Section 8.04 Taxes
	 	 	58	 
	Section 8.05 Base Rate Loans Substituted for Affected Fixed Rate Loans
	 	 	59	 
	Section 8.06 Substitution of Banks
	 	 	60	 
	 
	 	 	 	 
	ARTICLE 9 MISCELLANEOUS
	 	 	 	 
	Section 9.01 Notices
	 	 	61	 
	Section 9.02 No Waivers
	 	 	62	 
	Section 9.03 Expenses; Indemnification
	 	 	62	 
	Section 9.04 Set-Off; Sharing of Set-offs
	 	 	62	 
	Section 9.05 Amendments and Waivers
	 	 	63	 
	Section 9.06 Successors and Assigns
	 	 	63	 
	Section 9.07 Collateral
	 	 	65	 
	Section 9.08 Governing Law; Submission to Jurisdiction
	 	 	66	 
	Section 9.09 Counterparts; Integration
	 	 	66	 
	Section 9.10 Waiver of Jury Trial
	 	 	66	 
	Section 9.11 Confidentiality
	 	 	66	 
	Section 9.12 Survival
	 	 	67	 
	Section 9.13 Patriot Act Notice
	 	 	67	 






ii




 









 








	 	 	 
	SCHEDULE 1A

	 	Commitment Schedule
	SCHEDULE 1B

	 	Maximum LC Commitment Schedule
	SCHEDULE 2

	 	Pricing Schedule
	SCHEDULE 5.07

	 	List of Subsidiary Debt
	SCHEDULE 5.09

	 	List of Existing Liens
	EXHIBIT A

	 	Form of Note
	EXHIBIT B

	 	Form of Money Market Quote Request
	EXHIBIT C

	 	Form of Invitation for Money Market Quotes
	EXHIBIT D

	 	Form of Money Market Quote
	EXHIBIT E

	 	Assignment and Assumption Agreement
	EXHIBIT F

	 	Subsidiary Guaranty Agreement
	EXHIBIT G

	 	Calculation of Funding Losses
	EXHIBIT H

	 	List of Existing Letters of Credit
	EXHIBIT I

	 	Form of New Commitment Agreement






iii




 









 








CREDIT AGREEMENT




     THIS AGREEMENT dated as of March 11, 2005 is by and among CNF INC., a Delaware corporation,
the BANKS party hereto, PNC BANK, NATIONAL ASSOCIATION, as Syndication Agent, LASALLE BANK NATIONAL
ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION, HARRIS TRUST AND SAVINGS BANK and BNP PARIBAS, as
Co-Documentation Agents, BNY CAPITAL MARKETS, INC. and PNC BANK, NATIONAL ASSOCIATION, as Co-Lead
Arrangers, BNY CAPITAL MARKETS, INC., as Sole Book-Runner, and THE BANK OF NEW YORK, as
Administrative Agent.



WITNESSETH




     WHEREAS, the Borrower has requested that the Banks provide $400 million in credit facilities
for the purposes hereinafter set forth; and



     WHEREAS, the Banks have agreed to make the requested credit facilities available to the
Borrower on the terms and conditions hereinafter set forth.



     NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



ARTICLE 1

DEFINITIONS




     Section 1.01 Definitions.



     The following terms, as used herein, have the following meanings:



     “Absolute Rate Auction” means a solicitation of Money Market Quotes setting forth Money Market
Absolute Rates pursuant to Section 2.03.



     “Adjusted London Interbank Offered Rate” has the meaning set forth in Section 2.07(b).



     “Administrative Questionnaire” means, with respect to each Bank, an administrative
questionnaire in the form prepared by the Agent and submitted to the Agent (with a copy to the
Borrower) duly completed by such Bank.



     “Agent” means BNY, as administrative agent for the Banks, and its successors in such capacity.



     “Aggregate Usage” means, at any time, the sum of (i) the aggregate outstanding principal
amount of the Loans at such time plus (ii) the aggregate outstanding amount of the LC Liabilities
at such time.



     “Agreement” means this Agreement, as it may be amended, modified, supplemented and extended
from time to time.



1









 





     “Applicable Lending Office” means, with respect to any Bank, (i) in the case of its Base Rate
Loans, its Domestic Lending Office, (ii) in the case of its Euro-Dollar Loans, its Euro-Dollar
Lending Office and (iii) in the case of its Money Market Loans, its Money Market Lending Office.



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



     “Assignee” has the meaning set forth in Section 9.06(c).



     “Auto-Renewal LC” has the meaning set forth in Section 2.16(b)(ii).



     “Bank” means each bank or other financial institution listed on the signature pages hereof,
each Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective successors
and, where appropriate, shall include the Swingline Bank and each LC Issuing Bank.



     “Base Rate” means, for any day, a rate per annum equal to the higher of (i) the Prime Rate for
such day and (ii) the sum of 1/2 of 1% plus the Federal Funds Rate for such day.



     “Base Rate Loan” means a Committed Loan which bears interest at the Base Rate pursuant to the
applicable Notice of Committed Borrowing or Notice of Interest Rate Election or pursuant to Article
8.



     “Base Rate Swingline Loan” means a Swingline Loan which bears interest at the Base Rate
pursuant to the applicable Notice of Swingline Borrowing.



     “Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.



     “BNY” means The Bank of New York, and its successors.



     “Borrower” means CNF Inc., a Delaware corporation, and its successors.



     “Borrowing” has the meaning set forth in Section 1.03.



     “Closing Date” has the meaning set forth in Section 3.01.



     “Commitment” means, as the context requires, either (a) the commitment of a Bank to extend
credit to the Borrower hereunder or (b) the amount of such commitment, which is (i) with respect to
any Bank listed on the Commitment Schedule, the amount set forth opposite the name of such Bank on
the Commitment Schedule or (ii) with respect to any Assignee, the amount of the transferor Bank’s
Commitment assigned to such Assignee pursuant to Section 9.06(c), in each case as such amount may
be reduced from time to time pursuant to Section 2.09 or 2.11 or changed as a result of an
assignment pursuant to Section 9.06(c).



2









 





     “Commitment Schedule” means the Commitment Schedule attached hereto as Schedule 1A.



     “Committed Loan” means a loan made by a Bank pursuant to Section 2.01(a); provided
that, if any such loan or loans (or portions thereof) are combined or subdivided pursuant to a
Notice of Interest Rate Election, the term “Committed Loan” shall refer to the combined principal
amount resulting from such combination or to each of the separate principal amounts resulting from
such subdivision, as the case may be.



     “Consolidated Debt” means, at any date, the Debt of the Borrower and its Consolidated
Subsidiaries, determined on a consolidated basis as of such date, less, to the extent included in
the determination of Debt of the Borrower and its Consolidated Subsidiaries, all obligations of the
Borrower and its Consolidated Subsidiaries in respect of interest rate protection agreements,
foreign currency exchange agreements, commodity purchase or option agreements or other interest or
exchange rate or commodity price hedging agreements.



     “Consolidated EBITDA” means, for any period, the sum of, without duplication, (i) the
consolidated net income before income taxes of the Borrower and its Consolidated Subsidiaries for
such period plus (ii) to the extent deducted in determining such consolidated income before
income taxes, the sum of (A) interest expense, (B) depreciation and amortization, (C) other
non-cash items (including charges associated with the Borrower’s existing claims against the United
States Postal Service, charges associated with any write-down of goodwill pursuant to FAS 142,
charges associated with any write-down of the net assets of the Forwarding Business pursuant to FAS
142 or FAS 144 in connection with the Borrower’s plan to sell and sale of the Forwarding Business
and the designation, prior to such sale, of the Forwarding Business as a held-for-sale asset, and
charges associated with the grant of stock options and excluding (a) any non-cash item to the
extent representing an accrual or reserve for potential cash items in any future period or
amortization of a prepaid cash item that was paid in a prior period and (b) ordinary accruals), (D)
losses from discontinuances, and (E) losses from any extraordinary and non-recurring items,
minus (iii) to the extent increasing net income for such period, gains from discontinuances
and any extraordinary, non-recurring or non-cash items, excluding (a) any non-cash item to the
extent it represents the reversal of an accrual or reserve for potential cash item in any prior
period and (b) ordinary accruals. If an acquisition or series of related acquisitions, or
disposition or series of related dispositions, of property that constitutes assets comprising all
or substantially all of an operating unit of a business or constitutes all or substantially all of
the common equity of a Person (each, a “Subject Transaction”) shall, (x) for purposes of Section
5.12, occur during such period and (y) for purposes of Section 5.08 and the Pricing Schedule, occur
during or subsequent to such period and on or prior to the date of any relevant calculation, in
each such case, Consolidated EBITDA shall be calculated with respect to such period on a pro forma
basis (including pro forma adjustments arising out of events which are directly attributable to a
specific transaction, are factually supportable and are expected to have a continuing impact, in
each case determined on a basis consistent with Article 11 of Regulation SX promulgated under the
Securities Act of 1933, as amended from time to time, and any successor statute, and as interpreted
by the staff of the Securities and Exchange Commission, which would include cost savings resulting
from head count reduction, closure of facilities and similar restructuring charges, which pro forma
adjustments shall be certified by the chief financial officer or chief accounting officer of the
Borrower) using the historical financial statements of any business so



3









 





acquired or disposed of pursuant to such Subject Transaction and the consolidated financial
statements of the Borrower which shall be reformulated as if such Subject Transaction had been
consummated at the beginning of such period.




     “Consolidated EBITDAR” means, for any period, the sum of (i) Consolidated EBITDA for such
period plus (ii) to the extent deducted in determining such Consolidated EBITDA, Consolidated
Rental Expense for such period.



     “Consolidated Fixed Charges” means, for any period, the sum of Consolidated Interest Expense
and Consolidated Rental Expense for such period.



     “Consolidated Interest Expense” means, for any period, the interest expense of the Borrower
and its Consolidated Subsidiaries (but excluding any interest expense relating to (i) the TECONs
(as defined in the Existing Credit Agreement), which were repaid as of June of 2004, and (ii) any
Debt that is the subject of a legal or a covenant defeasance) determined on a consolidated basis
for such period, and adjusted to give pro forma effect to any Subject Transaction (as defined in
“Consolidated EBITDA”) that has occurred during such period as if it had occurred on the first day
of such period.



     “Consolidated Net Tangible Assets” means at any date the consolidated assets of the Borrower
and its Consolidated Subsidiaries (as shown on the most recent consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of a fiscal quarter) after deducting
therefrom (i) all current liabilities (excluding current liabilities which are by their terms
extendible or renewable at the option of the obligor to a time more than 365 days after the time of
determination and excluding current maturities of long-term debt and current maturities of
capitalized lease obligations), and (ii) all goodwill, tradenames, trademarks, patents, debt
discounts and expense and other intangibles, in each case in this clause (ii), net of applicable
amortization (all as shown on the most recent consolidated financial statements of the Borrower and
its Consolidated Subsidiaries as of the end of a fiscal quarter).



     “Consolidated Rental Expense” means, for any period, the sum of (without duplication) (a)
rental expense for operating leases of the Borrower and its Consolidated Subsidiaries determined on
a consolidated basis for such period plus (b) rental expense for operating leases of the Borrower
or any of its Consolidated Subsidiaries assigned to a third party and guaranteed by the Borrower or
any of its Consolidated Subsidiaries determined on a consolidated basis for such period, and
adjusted to give pro forma effect to any Subject Transaction (as defined in “Consolidated EBITDA”)
that has occurred during such period as if it had occurred on the first day of such period.



     “Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts of
which would be consolidated with those of the Borrower in its consolidated financial statements if
such statements were prepared as of such date.



     “Continuing Director” means (i) any individual who is a director of the Borrower on the
Closing Date and (ii) any individual who becomes a director of the Borrower after the Closing Date
and is elected or nominated for election as a director of the Borrower by a majority of the
individuals who were Continuing Directors immediately before such election or nomination.



4









 





     “Credit Extension” means the making of a Loan or the issuance, amendment, renewal or extension
of a Letter of Credit.



     “Credit Party” means the Agent, the Swingline Bank, an LC Issuing Bank or any Bank, as the
case may be.



     “Debt” of any Person means at any date, without duplication:




     (i) all obligations of such Person for borrowed money (other than overdrafts or other
similar obligations not outstanding for more than three Domestic Business Days (or in the
case of a Foreign Subsidiary, ten Domestic Business Days) arising in the ordinary course of
business),




     (ii) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments,




     (iii) all obligations of such Person to pay the deferred purchase price of property or
services, except overdrafts or other similar obligations not outstanding for more than three
Domestic Business Days (or in the case of a Foreign Subsidiary, ten Domestic Business Days)
or trade accounts payable, in each case, arising in the ordinary course of business,




     (iv) all obligations of such Person as lessee which are capitalized in accordance with
generally accepted accounting principles,




     (v) all obligations of such Person to reimburse banks for drawings under letters of
credit or payments with respect to bankers’ acceptances, which obligations remain unpaid for
more than three Domestic Business Days (or in the case of a Foreign Subsidiary, ten Domestic
Business Days) after they become due, or, if later, after such Person is notified of the due
date thereof,




     (vi) all obligations of the types referred to in clauses (i) to (v), inclusive, of this
definition which are secured by a Lien on any asset of such Person, whether or not such
obligations are otherwise obligations of such Person; provided that the amount of
Debt attributed, for purposes of this Agreement, to any such obligation that is not
otherwise an obligation of such Person shall be limited to the lesser of (x) the net book
value of the assets of such Person by which such obligation is secured or (y) the amount of
such obligation secured thereby (excluding accrued interest for the current period); and




     (vii) all Guarantees by such Person of obligations of others of the types referred to
in clauses (i) to (v), inclusive, of this definition (which Guarantees shall be deemed to
constitute Debt in an amount equal to the lesser of (x) the maximum amount of such Guarantee
and (y) the amount of such obligation of others Guaranteed thereby).



Debt of any Person shall not include any obligation of such Person that is the subject of a legal
or covenant defeasance and is fully secured by cash or cash equivalents (which cash or cash
equivalents shall not be included as an asset of the Borrower and its Subsidiaries for purposes of
this Agreement, including, without limitation, for purposes of Section 5.08 and Schedule 2).




5









 








     “Default” means any condition or event which constitutes an Event of Default or which with the
giving of notice or lapse of time or both would, unless cured or waived, become an Event of
Default.



     “Defaulting Bank” means a Bank that defaults in (i) its obligation to fund a Committed Loan or
its participation in any Letter of Credit or Swingline Loan, or (ii) its obligation pursuant to the
last paragraph of Section 2.01(b).



     “Dollars” and “$” means the lawful currency of the United States.



     “Domestic Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized by law to close; provided that, when
used in Section 2.16 with reference to any LC Issuing Bank, the term “Domestic Business Day” shall
not include any day on which commercial banks are authorized to close in the jurisdiction where the
office at which it books the Letters of Credit issued by it is located.



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



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



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



     “ERISA Group” means the Borrower and all other corporations, trades or businesses (whether or
not incorporated) to the extent collectively treated as a single employer under Section 414 of the
Internal Revenue Code.



     “Euro-Dollar Business Day” means any Domestic Business Day on which commercial banks are open
for international business (including dealings in dollar deposits) in London.



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



6









 





     “Euro-Dollar Loan” means a Committed Loan which bears interest based upon a Euro-Dollar Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest Rate Election.



     “Euro-Dollar Margin” means a rate per annum determined in accordance with the Pricing
Schedule.



     “Euro-Dollar Rate” means a rate of interest determined pursuant to Section 2.07(b) on the
basis of a London Interbank Offered Rate.



     “Euro-Dollar Reserve Percentage” has the meaning set forth in Section 2.07(b).



     “Event of Default” has the meaning set forth in Section 6.01.



     “Existing Credit Agreement” means the Credit Agreement dated as of July 3, 2001 (as amended)
among the Borrower, the banks party thereto, The Chase Manhattan Bank, as Syndication Agent, PNC
Bank, ABN-AMRO Bank, N.V. and Citibank, N.A., as Documentation Agents, and Bank of America, N.A.,
as Agent.



     “Existing Letters of Credit” means the letters of credit issued on or before the Closing Date
and listed in Exhibit H hereto.



     “Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to
the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if such day is not a Domestic Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the next preceding
Domestic Business Day as so published on the next succeeding Domestic Business Day, and (ii) if no
such rate is so published on such next succeeding Domestic Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to BNY on such day on such transactions as determined by
the Agent.



     “Financing Documents” means this Agreement, the Subsidiary Guaranty Agreement and the Notes,
if any.



     “Fixed Rate Loans” means Euro-Dollar Loans, Quoted Rate Swingline Loans or Money Market Loans
(excluding Money Market LIBOR Loans bearing interest at the Base Rate pursuant to Section 8.01(a))
or any combination of the foregoing.



     “Foreign Bank” has the meaning set forth in Section 8.04(d).



     “Foreign Subsidiary” means any Subsidiary which is a “controlled foreign corporation” within
the meaning of Section 957 of the Internal Revenue Code.



     “Forwarding Business” means all of the issued and outstanding capital stock of Menlo Worldwide
Forwarding, Inc., a wholly owned subsidiary of Menlo Worldwide, LLC, and certain assets and
liabilities of the Borrower or its Subsidiaries related to the business conducted by



7









 





Menlo Worldwide Forwarding, Inc. as of September 30, 2004, as more specifically described in
the Borrower’s filing with the Securities and Exchange Commission on Form 8-K dated as of October
6, 2004, including all exhibits thereto.




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



     “Group” or “Group of Loans” means at any time a group of Loans consisting of (i) all Committed
Loans which are Base Rate Loans at such time or (ii) all Committed Loans which are Euro-Dollar
Loans of the same type having the same Interest Period at such time; provided that, if a
Committed Loan of any particular Bank is converted to or made as a Base Rate Loan pursuant to
Section 8.02 or 8.04, such Loan shall be included in the same Group or Groups of Loans from time to
time as it would have been in if it had not been so converted or made.



     “Guarantee” by any Person means any obligation, contingent or otherwise, of such Person
directly or indirectly guaranteeing any Debt of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
(whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring in any other manner the
obligee of such Debt of the payment thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business. The term Guarantee used
as a verb has a corresponding meaning.



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



     “Indemnified Liabilities” has the meaning set forth in Section 9.03(b).



     “Indemnitee” has the meaning set forth in Section 9.03(b).



     “Interest Period” means:



     (a) with respect to each Euro-Dollar Loan, the period commencing on the date of borrowing
therefor specified in the applicable Notice of Borrowing or on the date specified in the applicable
Notice of Interest Rate Election and ending one, two, three, six or nine months (or, if made
available by all of the Banks, twelve months) thereafter, as the Borrower may elect in the
applicable notice; provided that:




     (i) any Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day, and



8









 






     (ii) any Interest Period which begins on the last Euro-Dollar 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, subject to clause (iii) below, end
on the last Euro-Dollar Business Day of a calendar month, and




     (iii) any Interest Period which would otherwise end after the Termination Date shall
end on the Termination Date;



     (b) with respect to each Money Market LIBOR Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing and ending such number of days thereafter
(but not less than seven days or later than six months after the date of such Loan) as the Borrower
may elect in accordance with Section 2.03; provided that:




     (i) any Interest Period which would otherwise end on a day which is not a Euro-Dollar
Business Day shall be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Euro-Dollar Business Day, and




     (ii) any Interest Period which would otherwise end after the Termination Date shall end
on the Termination Date;



     (c) with respect to each Money Market Absolute Rate Loan, the period commencing on the date of
borrowing specified in the applicable Notice of Borrowing and ending such number of days thereafter
(but not less than seven days or later than 180 days after the date of such Loan) as the Borrower
may elect in accordance with Section 2.03; provided that:




     (i) any Interest Period which would otherwise end on a day which is not a Domestic
Business Day shall be extended to the next succeeding Domestic Business Day, and




     (ii) any Interest Period which would otherwise end after the Termination Date shall end
on the Termination Date; and



     (d) with respect to any Swingline Loan, the period commencing on the date of borrowing
specified in the applicable Notice of Swingline Borrowing and ending such number of days thereafter
(but not more than thirty (30) days) as the Borrower may elect in accordance with Section 2.02;
provided that any Interest Period which would otherwise end on or after the Termination
Date shall end on the Domestic Business Day immediately preceding the Termination Date.



     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, or any successor
statute.



     “LC Commitment” means, with respect to each LC Issuing Bank, the commitment of such LC Issuing
Bank to issue Letters of Credit hereunder. The amount of each LC Issuing Bank’s LC Commitment is
set forth on Schedule 1B attached hereto, as such Schedule 1B may be adjusted from time to time by
the Agent to reflect the increase, decrease, addition or deletion of an LC Issuing Bank’s LC
Commitment, as agreed to pursuant to a separate agreement in



9









 





writing between the Borrower and such LC Issuing Bank, such adjustment to Schedule 1B to be
effective upon receipt of written notice to the Agent of such agreement from the Borrower and such
LC Issuing Bank, provided that any determination by an LC Issuing Bank to increase its LC
Commitment shall be in the sole discretion of such LC Issuing Bank.




     “LC Disbursement” means a payment made by an LC Issuing Bank under a Letter of Credit.



     “LC Issuing Bank Exposure” means, at any time, with respect to any LC Issuing Bank, the sum,
without duplication, of (a) the aggregate undrawn amount of all outstanding Letters of Credit at
such time issued by such LC Issuing Bank plus (b) the aggregate amount of all LC Disbursements made
by such LC Issuing Bank that have not yet been reimbursed by the Borrower at such time.



     “LC Issuing Banks” means (a) each Bank set forth on Schedule 1B attached hereto, as such
Schedule 1B may be adjusted from time to time by the Agent to reflect the addition or deletion of
Banks as LC Issuing Banks, as agreed to pursuant to a separate agreement in writing between the
Borrower and the applicable Bank, such adjustment to Schedule 1B to be effective upon receipt of
written notice to the Agent of such agreement from the Borrower and such Bank, provided
that any determination by a Bank to become an LC Issuing Bank shall be in the sole discretion of
such Bank, and provided further that the Borrower, in its sole discretion, may by written
notice to the Agent delete any Bank as an LC Issuing Bank at any time when such Bank has no Letters
of Credit outstanding, and (b) with respect to the Existing Letters of Credit, each of the Banks
listed on Exhibit H, in each case in their capacities as issuers of Letters of Credit. Any LC
Issuing Bank may, in its discretion with the consent of the Borrower (such consent not to be
unreasonably withheld), arrange for one or more Letters of Credit to be issued by affiliates of
such LC Issuing Bank, in which case the term “LC Issuing Bank” shall include any such affiliate
with respect to Letters of Credit issued by such Affiliate.



     “LC Liabilities” means, at any time, the sum, without duplication, of (i) the aggregate amount
available for drawing under all Letters of Credit outstanding at such time plus (ii) the aggregate
unpaid amount at such time of all Reimbursement Obligations in respect of previous drawings made
under Letters of Credit.



     “Letter of Credit” means (i) any Existing Letter of Credit and (ii) any financial stand-by
letter of credit (including without limitation a Workers’ Compensation Letter of Credit)
denominated in Dollars and issued hereunder on or after the Closing Date.



     “LIBOR Auction” means a solicitation of Money Market Quotes setting forth Money Market Margins
based on the London Interbank Offered Rate pursuant to Section 2.03.



     “Lien” means with respect to any asset (including without limitation any account receivable),
any mortgage, lien, pledge, charge or security interest of any kind, or any encumbrance
constituting a security interest, or any other type of preferential arrangement that has the
practical effect of creating a security interest, in respect of such asset. For the purposes of
this Agreement, the Borrower or any Subsidiary shall be deemed (x) to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any



10









 





conditional sale agreement, capital lease or other title retention agreement relating to such
asset and (y) not to own subject to a Lien any asset which it leases under a lease that is
classified as an operating lease under generally accepted accounting principles.




     “Loan” means a Base Rate Loan, a Euro-Dollar Loan, a Swingline Loan or a Money Market Loan and
“Loans” means Base Rate Loans, Euro-Dollar Loans, Swingline Loans or Money Market Loans or any
combination of the foregoing.



     “London Interbank Offered Rate” has the meaning set forth in Section 2.07(b).



     “Material Debt” means Debt (other than the Loans) of the Borrower and/or one or more of its
Subsidiaries in an aggregate outstanding principal amount exceeding $75,000,000. For purposes of
this definition, if the Debt arising from any single transaction has an outstanding principal
amount less than $1,000,000, it shall be excluded, but Debts arising from one or more related or
unrelated transactions shall be aggregated if the Debt arising from each such transaction has an
outstanding principal amount of $1,000,000 or more.



     “Material Plan” means at any time a Plan or Plans having aggregate Unfunded Liabilities in
excess of $75,000,000.



     “Minimum Commitment Amount” has the meaning set forth in Section 2.01(a).



     “Minimum Swingline Amount” has the meaning set forth in Section 2.01(c).



     “Money Market Absolute Rate” has the meaning set forth in Section 2.03(d).



     “Money Market Absolute Rate Loan” means a loan to be made by a Bank pursuant to an Absolute
Rate Auction.



     “Money Market Lending Office” means, as to each Bank, its Domestic Lending Office or such
other office, branch or affiliate of such Bank as it may hereafter designate as its Money Market
Lending Office by notice to the Borrower and the Agent; provided that any Bank may from
time to time by notice to the Borrower and the Agent designate separate Money Market Lending
Offices for its Money Market LIBOR Loans, on the one hand, and its Money Market Absolute Rate
Loans, on the other hand, in which case all references herein to the Money Market Lending Office of
such Bank shall be deemed to refer to either or both of such offices, as the context may require.



     “Money Market LIBOR Loan” means a loan to be made by a Bank pursuant to a LIBOR Auction
(including such a loan bearing interest at the Base Rate pursuant to Section 8.01(a)).



     “Money Market Loan” means a Money Market LIBOR Loan or a Money Market Absolute Rate Loan.



     “Money Market Margin” has the meaning set forth in Section 2.03(d).



     “Money Market Quote” means an offer by a Bank to make a Money Market Loan in accordance with
Section 2.03.



11









 





     “Money Market Quote Request” means a request, substantially in the form of Exhibit B, by the
Borrower for one or more Money Market Quotes.



     “Moody’s” means Moody’s Investors Service, Inc., a Delaware corporation, and its successors
or, if such corporation shall be dissolved or liquidated or shall no longer perform the functions
of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Required Banks, with the approval of the
Borrower, by notice to the Agent and the Borrower.



     “Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of
Section 400l(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years made contributions,
including for these purposes any Person which ceased to be a member of the ERISA Group during such
five year period.



     “Notes” means promissory notes of the Borrower, substantially in the form of Exhibit A hereto,
evidencing the obligation of the Borrower to repay the Loans, and “Note” means any one of such
promissory notes issued hereunder.



     “Notice of Borrowing” means a Notice of Committed Borrowing, a Notice of Money Market
Borrowing or a Notice of Swingline Borrowing.



     “Notice of Committed Borrowing” has the meaning set forth in Section 2.02(a).



     “Notice of Money Market Borrowing” has the meaning set forth in Section 2.03(f).



     “Notice of Interest Rate Election” has the meaning set forth in Section 2.10(a)(ii).



     “Notice of Swingline Borrowing” has the meaning set forth in Section 2.02(b).



     “Obligor” means each of the Borrower and the Subsidiary Guarantors, and “Obligors” means all
of the foregoing.



     “Outstanding Committed Exposure” means, as to any Bank at any time, an amount equal to the sum
of (i) the aggregate principal amount of its Committed Loans outstanding at such time, plus (ii)
its participation interest in the LC Liabilities at such time, plus (iii) its Percentage at such
time (or, in the event that the aggregate Commitments shall have expired or otherwise terminated,
immediately before giving effect to such expiration or termination) of the outstanding principal
balance of the Swingline Loans.



     “Outstanding Total Credit Exposure” means, as to any Bank at any time, the sum of (i) the
aggregate principal amount of its Money Market Loans outstanding at such time plus (ii) its
Outstanding Committed Exposure at such time.



     “Parent” means, with respect to any Bank, any Person controlling such Bank.



     “Participant” has the meaning set forth in Section 9.06(b).



12









 





     “Patriot Act” has the meaning set forth in Section 9.13.



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



     “Percentage” means, with respect to each Bank, the percentage that such Bank’s Commitment
constitutes of the aggregate amount of the Commitments of all Banks.



     “Person” means an individual, a corporation, a limited liability company, a partnership, an
association, a trust or any other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.



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



     “Pricing Schedule” means the Pricing Schedule attached hereto as Schedule 2.



     “Prime Rate” means, for any day, the rate per annum in effect for such day as publicly
announced from time to time by BNY as its prime commercial lending rate at its principal office in
New York City. Such rate is a rate set by BNY based upon various factors including BNY’s costs
and desired return, general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced rate. Any change in
such rate announced by BNY shall take effect at the opening of business on the day specified in the
public announcement of such change.



     “Quarterly Dates” means each March 31, June 30, September 30 and December 31.



     “Quoted Rate” means, for any day in an Interest Period of a Swingline Loan, the rate mutually
agreed to by the Borrower and the Swingline Bank for such Interest Period.



     “Quoted Rate Swingline Loan” means a Swingline Loan which bears interest at the Quoted Rate
pursuant to the applicable Notice of Swingline Borrowing.



     “Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System, as
in effect from time to time.



     “Reimbursement Obligations” means, at any time, the aggregate of all obligations of the
Borrower then outstanding under Section 2.16 to reimburse an LC Issuing Bank for amounts paid by
such LC Issuing Bank in respect of any drawing under any Letter of Credit.



     “Required Banks” means at any time Banks having more than 50% of the aggregate amount of the
Commitments or, if the Commitments shall have been terminated, having more than 50% of the
Aggregate Usage.



13









 





     “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Companies, Inc., or
if Standard & Poor’s Ratings Group shall no longer perform the functions of a securities rating
agency, “S&P” shall be deemed to refer to any other nationally recognized securities rating agency
designated by the Required Banks, with the approval of the Borrower, by notice to the Agent and the
Borrower.



     “Significant Subsidiary” means any Subsidiary (other than Emery Insurance Company Limited) of
the Borrower which has total assets or revenues in excess of 10% of the consolidated total assets
or consolidated revenues of the Borrower and its Consolidated Subsidiaries, all calculated at the
date of the most recent financial statements delivered to the Agent pursuant to Section 5.01 or, in
the case of revenues, for the twelve calendar months then ended.



     “Subsidiary” means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect or appoint a majority of the Person or Persons
(whether directors, managers, trustees or other Persons performing similar functions) having the
power to direct or cause the direction of the management and policies of such corporation or other
entity is at the time owned or controlled, directly or indirectly, by the Borrower or one or more
of the Borrower’s other Subsidiaries or a combination thereof (it being understood that Vector SCM,
LLC is not, as of the Closing Date, a Subsidiary).



     “Subsidiary Guarantors” means, at any date, (i) Con-Way Transportation Services, Inc., (ii)
Menlo Worldwide, LLC, (iii) Menlo Logistics, Inc. and (iv) each other Subsidiary of the Borrower
which is a party to the Subsidiary Guaranty Agreement as of such date.



     “Subsidiary Guaranty Agreement” means a Subsidiary Guaranty Agreement among the Borrower, the
Subsidiary Guarantors and the Agent, as executed and delivered pursuant to Section 3.01(c) and as
the same may be amended from time to time in accordance with the terms thereof.



     “Swingline Commitment Amount” means Fifty Million Dollars ($50,000,000), as such amount may be
reduced from time to time pursuant to Section 2.09 or 2.11.



     “Swingline Bank” means BNY in its capacity as such and any successors or assigns in such
capacity.



     “Swingline Loans” shall have the meaning set forth in Section 2.01(c)




     “Taxes” has the meaning set forth in Section 8.04(a).



     “Termination Date” means March 11, 2010.



     “Third Party Affiliate” means (i) any Person or any group of Persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) that directly, or indirectly
through one or more intermediaries, controls the Borrower (a “Controlling Person”) or (ii) any
Person (other than the Borrower or a Subsidiary) which is controlled by or is under common control
with a Controlling Person. As used herein, the term “control” means possession, directly or
indirectly, of the power to direct or cause the direction of the management



14









 





or policies of a Person, whether through the ownership of voting securities, by contract or
otherwise.




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



     “United States” means the United States of America, including the States and the District of
Columbia, but excluding its territories and possessions.



     “Unused Commitments” means, at any time, the difference between the aggregate Commitments of
all Banks on such date and the Aggregate Usage on such day before giving effect to any new Credit
Extension.



     “Wholly-Owned Subsidiary” means any Subsidiary all of the shares of capital stock or other
ownership interests of which (except directors’ qualifying shares) are at the time directly or
indirectly (through Subsidiaries) owned by the Borrower.



     “Workers’ Compensation Letter of Credit” means any letter of credit which is used to secure
obligations of the Borrower or its Subsidiaries under workers’ compensation or similar laws.




     Section 1.02 Accounting Terms and Determinations.



     Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements required to be
delivered hereunder shall be prepared in accordance with generally accepted accounting principles
as in effect from time to time, applied on a basis consistent (except for changes agreed to by the
Borrower’s independent public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Consolidated Subsidiaries delivered to the Agent;
provided that, if the Borrower notifies the Agent that the Borrower wishes to amend any
covenant in Article 5 to eliminate the effect of any change in generally accepted accounting
principles on the operation of such covenant (or if the Agent notifies the Borrower that the
Required Banks wish to amend Article 5 for such purpose), then the Borrower’s compliance with such
covenant shall be determined on the basis of generally accepted accounting principles in effect
immediately before the relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Banks.



     Section 1.03 Types of Borrowings.



     The term “Borrowing” denotes the aggregation of Loans of one or more Banks to be made to the
Borrower pursuant to Section 2.01 or 2.03 on the same date, all of which Loans are



15









 





of the same type (subject to Article 8) and, except in the case of Base Rate Loans, have the
same Interest Period or initial Interest Period. Borrowings are classified for purposes of this
Agreement either by reference to the pricing of Loans comprising such Borrowing (e.g., a
“Euro-Dollar Borrowing” is a Borrowing comprised of Euro-Dollar Loans) or by reference to the
provisions of Article 2 under which participation therein is determined (i.e., a “Committed
Borrowing” is a Borrowing under Section 2.01(a) in which all Banks participate in proportion to
their Commitments, while a “Money Market Borrowing” is a Borrowing under Section 2.03 in which the
Bank participants are determined on the basis of their bids in accordance therewith and a
“Swingline Borrowing” is a Borrowing under Section 2.01(c)).




ARTICLE 2

THE CREDITS




     Section 2.01 Commitments to Lend.



     (a) Committed Loans. Each Bank (severally and not jointly) agrees, on the terms and
conditions set forth in this Agreement, to make revolving loans in Dollars to the Borrower pursuant
to this Section from time to time prior to the Termination Date; provided that, immediately
after each such Committed Loan is made, the Outstanding Committed Exposure of such Bank would not
exceed its Commitment and the Aggregate Usage would not exceed the aggregate Commitments. Each
Borrowing pursuant to this Section 2.01(a) shall be in an aggregate principal amount equal to the
lesser (such lesser amount, the “Minimum Committed Amount”) of (i) $10,000,000 or any larger
integral multiple of $1,000,000, and (ii) the amount of the Unused Commitments, and shall be made
from the several Banks ratably in accordance with their respective Percentages. Within the
foregoing limits, the Borrower may borrow under this Section, prepay Committed Loans to the extent
permitted by Section 2.12 and reborrow under this Section at any time prior to the Termination
Date.



     (b) Increase in Commitments for Committed Loans. The Borrower shall have the right at any
time after the Closing Date to increase the aggregate amount of Commitments hereunder by up to
$100,000,000 (up to $500,000,000 in total aggregate Commitments) without the consent of the Banks,
subject however to the satisfaction of each of the following terms and conditions:




     (i) concurrently with the Borrower’s request for such increase hereunder, the Borrower
shall deliver to the Agent, a certificate of the chief financial officer or the chief
accounting officer of the Borrower certifying to the Agents and the Bank that no Default has
occurred and is continuing;




     (ii) such increase shall be allocated in the following order:




     (A) first, to the existing Banks consenting to an increase in the amount of
their additional Commitment (each a “Consenting Bank”); provided that (1) on
or before the tenth Domestic Business Day following notification of a requested
increase in the aggregate Commitments, each Bank shall notify the Borrower of the
desired increase (but not in excess of the aggregate amount requested by the
Borrower), if any, in its Commitment (with respect to each Bank, its “Target
Increase”), (2) if the aggregate Target Increases of all Consenting Banks shall



16









 






exceed the increase in the aggregate Commitments requested by the Borrower, the
Commitments of each Consenting Bank shall be increased on a pro rata basis according
to the existing Percentage of such Consenting Bank, provided, further, that
in the event any Consenting Bank’s Commitment would, but for the terms of this
proviso, be increased pursuant to this clause (2) by an amount in excess of such
Consenting Bank’s Target Increase, such Consenting Bank’s Commitment shall instead
be increased by its Target Increase and such excess (the “Excess Amount”) together
with the Excess Amount, if any, of each other Consenting Bank, shall be allocated
among the remaining Consenting Banks in accordance with this clause (2) until either
the increase in the aggregate Commitments requested by the Borrower have been fully
allocated or the amount of such increase allocated to each Consenting Bank equals
its Target Increase; and




     (B) second, to any other commercial bank, financial institution or “accredited
investor” (as defined in Regulation D of the Securities and Exchange Commission)
reasonably acceptable to the Agent, each LC Issuing Bank, the Swingline Bank and the
Borrower;




     (iii) each Person providing a new Commitment shall execute a New Commitment Agreement
substantially in the form of Exhibit I hereto and, upon such execution and the
satisfaction of the other terms and conditions of this Section 2.01(b), such Person shall
thereupon become a party hereto and have the rights and obligations of a Bank under this
Agreement as more specifically provided in the New Commitment Agreement; and




     (iv) the Agent shall promptly notify each Bank, the Swingline Bank and each LC Issuing
Bank of (A) the new aggregate Commitments and (B) each Bank’s Percentage, in each case after
giving effect to the one-time increase in Commitments referred to in this Section 2.01(b).



     On the date (which date shall be a Domestic Business Day) on which the increase in the
aggregate Commitments occurs (the “Increase Date”) (1) the Agent and the Banks shall make
adjustments among the Banks with respect to the Committed Loans outstanding hereunder and amounts
of principal, interest, fees and other amounts paid or payable with respect thereto (and
participations in Letters of Credit and Swingline Loans) as shall be necessary in order to
reallocate among the Banks such outstanding amounts (and participations in Letters of Credit and
Swingline Loans) based on the new Percentages and to otherwise carry out fully the terms of this
Section 2.01(b), and (2) in connection with each transfer of all or any portion of a Committed Loan
by a Bank in connection with such adjustments, such Bank may in its sole discretion treat such
transfer as a prepayment for purposes of Section 2.14 and the Borrower shall pay to such Bank the
amount, if any, owing to such Bank pursuant to such Section as a result thereof. The Borrower
agrees that, in connection with any such increase in the aggregate Commitments, it will promptly
provide a Note to each Bank providing a new Commitment, if such Bank has requested a Note in
accordance with Section 2.05(b), substantially in the form of the Note attached hereto as
Exhibit A. Each of the parties hereto acknowledges and agrees that no Bank shall be
obligated to increase its Commitment pursuant to the terms of this Section 2.01(b). Each Bank with
Committed



17









 





Loans outstanding immediately prior to the Increase Date shall, to the extent deemed necessary
by the Agent and the Borrower to appropriately reallocate the aggregate Commitments and give effect
to the new Commitments, sell a portion of its Loans and participation interests in any unpaid
Reimbursement Obligations and Swingline Loans to the Banks providing new Commitments hereunder so
that, after giving effect thereto, each Bank’s percentage of outstanding Loans and participations
shall equal its percentage of outstanding Commitments.




     (c) Swingline Loans. The Swingline Bank, in its individual capacity, agrees, on the terms and
conditions set forth in this Agreement, to make revolving loans (“Swingline Loans”) in Dollars to
the Borrower pursuant to this Section from time to time prior to the Termination Date;
provided that, immediately after each such Swingline Loan is made (i) the aggregate
outstanding principal amount of all Swingline Loans shall not exceed the Swingline Commitment
Amount, and (ii) the Aggregate Usage would not exceed the aggregate Commitments. The Agent will,
upon request of the Swingline Bank, confirm the Aggregate Usage. Each Swingline Loan shall be in a
minimum principal amount equal to the lesser (such lesser amount, “Minimum Swingline Amount”) of
(x) $1,000,000 or any larger integral multiple of $1,000,000 and (y) the unused Swingline
Commitment Amount. Within the foregoing limits, the Borrower may borrow under this Section, prepay
Swingline Loans to the extent permitted by Section 2.12 and reborrow under this Section at any time
prior to the Termination Date. Notwithstanding anything to the contrary contained in this
Agreement (1) the Swingline Bank shall not be obligated to make any Swingline Loan at a time when
any Bank shall be in default of its obligations hereunder unless arrangements to eliminate the
Swingline Bank’s risk with respect to such Defaulting Bank’s participation in such Swingline Loan
shall have been made for the benefit of the Swingline Bank and such arrangements are satisfactory
to the Swingline Bank, and (2) the Swingline Bank shall not make a Swingline Loan if, no later than
one Domestic Business Day prior to the date of Borrowing with respect to such Swingline Loan, it
shall have received written notice from any Bank that the conditions set forth in Article 3 with
respect thereto have not been satisfied.



     Section 2.02 Notice of Committed Borrowing.



     (a) Committed Loans. The Borrower shall give the Agent notice (a “Notice of Committed
Borrowing”) not later than (x) 12:00 Noon (New York City time) on the Domestic Business Day before
each Base Rate Borrowing (or the same Domestic Business Day, as the Agent may agree,
provided that if any Bank is a Foreign Bank that does not have a lending office in the
United States, the consent of such Bank shall be required for such shorter notice) and (y) 1:00
P.M. (New York City time) on the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:




     (i) the date of such Borrowing, which shall be a Domestic Business Day in the case of a
Base Rate Borrowing or a Euro-Dollar Business Day in the case of a Euro-Dollar Borrowing,




     (ii) the aggregate amount of such Borrowing,




     (iii) whether the Loans comprising such Borrowing are to bear interest initially at the
Base Rate or based upon a Euro-Dollar Rate, and



18









 






     (iv) in the case of a Euro-Dollar Borrowing, the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of Interest Period;



provided that the Borrower may not deliver a Notice of Committed Borrowing if after giving
effect to the requested Borrowing there would be more than ten Committed Euro-Dollar Borrowings
outstanding.




              (b) Swingline Loans. The Borrower shall give the Swingline Bank (with a copy to the Agent)
notice (a “Notice of Swingline Borrowing”) not later than 12:00 Noon (New York City time) on the
date of each Swingline Borrowing, specifying:




     (i) the date of such Borrowing, which shall be a Domestic Business Day,




     (ii) the aggregate amount of such Borrowing,




     (iii) whether the Loans comprising such Borrowing are to bear interest initially at the
Base Rate or the Quoted Rate, and




     (iv) the duration of the Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period.



     Section 2.03 Money Market Borrowings.



     (a) The Money Market Option. In addition to Committed Borrowings pursuant to Section 2.01(a)
and Swingline Borrowings pursuant to Section 2.01(c), the Borrower may, as set forth in this
Section, request the Banks to make offers to make Money Market Loans to the Borrower on any day
prior to the Termination Date, provided that, immediately after each such Money Market Loan
is made, the Aggregate Usage will not exceed the aggregate Commitments. The Banks may, but shall
have no obligation to, make such offers and the Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section.



     (b) Money Market Quote Request. When the Borrower wishes to request offers to make Money
Market Loans under this Section, it shall transmit to the Agent by facsimile transmission a Money
Market Quote Request so as to be received no later than (x) 1:00 P.M. (New York City time) on the
fifth Euro-Dollar Business Day prior to the date of Borrowing proposed therein, in the case of a
LIBOR Auction or (y) 11:30 A.M. (New York City time) on the Domestic Business Day next preceding
the date of Borrowing proposed therein, in the case of an Absolute Rate Auction (or, in either
case, such other time or date as the Borrower and the Agent shall have mutually agreed and shall
have notified to the Banks not later than the date of the Money Market Quote Request for the first
LIBOR Auction or Absolute Rate Auction for which such change is to be effective) specifying:




     (i) the proposed date of Borrowing, which shall be a Euro-Dollar Business Day in the
case of a LIBOR Auction or a Domestic Business Day in the case of an Absolute Rate Auction,




     (ii) the aggregate amount of such Borrowing, which shall be $10,000,000 or a larger
integral multiple of $1,000,000,



19









 






     (iii) the duration of the Interest Period applicable thereto, subject to the provisions
of the definition of Interest Period, and




     (iv) whether the Money Market Quotes requested are to set forth a Money Market Margin
or a Money Market Absolute Rate.



The Borrower may request offers to make Money Market Loans for more than one Interest Period in a
single Money Market Quote Request. No Money Market Quote Request shall be given within five
Euro-Dollar Business Days (or such other number of days as the Borrower and the Agent may agree) of
any other Money Market Quote Request.




     (c) Invitation for Money Market Quotes. Promptly upon receipt of a Money Market Quote
Request, the Agent shall send to the Banks by facsimile transmission an invitation for Money Market
Quotes substantially in the form of Exhibit C hereto, which shall constitute an invitation by the
Borrower to each Bank to submit Money Market Quotes offering to make the Money Market Loans to
which such Money Market Quote Request relates in accordance with this Section.



     (d) Submission and Contents of Money Market Quotes.




     (i) Each Bank may submit a Money Market Quote containing an offer or offers to make
Money Market Loans in response to any invitation for Money Market Quotes. Each Money Market
Quote must comply with the requirements of this subsection (d) and must be submitted to the
Agent by facsimile transmission at its offices specified in or pursuant to Section 9.01 not
later than (x) 2:00 P.M. (New York City time) on the fourth Euro-Dollar Business Day prior
to the proposed date of Borrowing, in the case of a LIBOR Auction or (y) 10:15 A.M. (New
York City time) on the proposed date of Borrowing, in the case of an Absolute Rate Auction
(or, in either case, such other time or date as the Borrower and the Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of the Money
Market Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such
change is to be effective); provided that Money Market Quotes submitted by the Agent
(or any affiliate of the Agent) in the capacity of a Bank may be submitted, and may only be
submitted, if the Agent or such affiliate notifies the Borrower of the terms of the offer or
offers contained therein not later than (x) one hour prior to the deadline for the other
Banks, in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the other
Banks, in the case of an Absolute Rate Auction. Subject to Articles 3 and 6, any Money
Market Quote so made shall be irrevocable except with the written consent of the Agent given
on the instructions of the Borrower.




     (ii) Each Money Market Quote shall be in substantially the form of Exhibit D hereto and
shall in any case specify:




     (A) the proposed date of Borrowing,




     (B) the principal amount of the Money Market Loan for which each such offer is
being made, which principal amount (w) may be greater than or less than the
Commitment of the quoting Bank, (x) must be $5,000,000 or a larger



20









 






integral multiple of $1,000,000, (y) may not exceed the principal amount of
Money Market Loans for which offers were requested and (z) may be subject to an
aggregate limitation as to the principal amount of Money Market Loans for which
offers being made by such quoting Bank may be accepted,




     (C) in the case of a LIBOR Auction, the margin above or below the applicable
London Interbank Offered Rate (the “Money Market Margin”) offered for each such
Money Market Loan, expressed as a percentage (specified to the nearest 1/10,000 of
1%) to be added to or subtracted from such base rate,




     (D) in the case of an Absolute Rate Auction, the rate of interest per annum
(specified to the nearest 1/10,000 of 1%) (the “Money Market Absolute Rate”) offered
for each such Money Market Loan, and




     (E) the identity of the quoting Bank.



A Money Market Quote may set forth up to five separate offers by the quoting Bank with respect to
each Interest Period specified in the related invitation for Money Market Quotes.





     (iii) Any Money Market Quote shall be disregarded if it:




     (A) is not substantially in conformity with Exhibit D hereto or does not
specify all of the information required by subsection (d)(ii);




     (B) contains qualifying, conditional or similar language;




     (C) proposes terms other than or in addition to those set forth in the
applicable invitation for Money Market Quotes; or




     (D) arrives after the time set forth in subsection (d)(i).



     (e) Notice to Borrower. The Agent shall promptly notify the Borrower of the terms (x) of any
Money Market Quote submitted by a Bank that is in accordance with subsection (d) and (y) of any
Money Market Quote that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote Request. Any such
subsequent Money Market Quote shall be disregarded by the Agent unless such subsequent Money Market
Quote is submitted solely to correct a manifest error in such former Money Market Quote. The
Agent’s notice to the Borrower shall specify (A) the aggregate principal amount of Money Market
Loans for which offers have been received for each Interest Period specified in the related Money
Market Quote Request, (B) the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable, limitations on the aggregate
principal amount of Money Market Loans for which offers in any single Money Market Quote may be
accepted.



     (f) Acceptance and Notice by Borrower. Not later than 11:30 A.M. (New York City time) on (x)
the third Euro-Dollar Business Day prior to the proposed date of Borrowing, in the case of a LIBOR
Auction or (y) the proposed date of Borrowing, in the case of an Absolute Rate Auction (or, in
either case, such other time or date as the Borrower and the Agent shall have



21









 





mutually agreed and shall have notified the Banks not later than the date of the Money Market
Quote Request for the first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective), the Borrower shall notify the Agent of its acceptance or non-acceptance of the offers
so notified to it pursuant to subsection (e). In the case of acceptance, such notice (a “Notice of
Money Market Borrowing”) shall specify the aggregate principal amount of offers for each Interest
Period that are accepted. The Borrower may accept any Money Market Quote in whole or in part;
provided that:





     (i) the aggregate principal amount of each Money Market Borrowing may not exceed the
applicable amount set forth in the related Money Market Quote Request,




     (ii) the principal amount of each Money Market Borrowing must be $10,000,000 or a
larger integral multiple of $1,000,000,




     (iii) acceptance of offers may only be made on the basis of ascending Money Market
Margins or Money Market Absolute Rates, as the case may be, and




     (iv) the Borrower may not accept any offer that is described in subsection (d)(iii) or
that otherwise fails to comply with the requirements of this Agreement.



     (g) Allocation by Agent. If offers are made by two or more Banks with the same Money Market
Margins or Money Market Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which such offers are accepted for the related Interest
Period, the principal amount of Money Market Loans in respect of which such offers are accepted
shall be allocated by the Agent among such Banks as nearly as possible (in multiples of $1,000,000,
as the Agent may deem appropriate) in proportion to the aggregate principal amounts of such offers.
Determinations by the Agent of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.



     Section 2.04 Notice to Banks; Funding of Loans; Additional Provisions Relating to Swingline
Loans.



     (a) Upon receipt of a Notice of Committed Borrowing or a Notice of Money Market Borrowing, the
Agent shall promptly notify each Bank of the contents thereof and of such Bank’s share (if any) of
such Borrowing and such Notice of Borrowing shall not thereafter be revocable by the Borrower.
Upon receipt of a Notice of Swingline Borrowing by the Swingline Bank, such Notice of Borrowing
shall not thereafter be revocable by the Borrower.



     (b) Not later than (x) 12:00 Noon (New York City time) on the date of each Borrowing other
than a Base Rate Borrowing and (y) 1:00 P.M. (New York City time) on the date of each Base Rate
Borrowing, each Bank participating therein shall make available its share of such Borrowing, in
Federal or other funds immediately available in New York City, to the Agent at its address referred
to in Section 9.01. Unless the Agent determines that any applicable condition specified in Article
3 has not been satisfied, the Agent will, promptly after receipt thereof, make the funds so
received from the Banks available to the Borrower at the Agent’s aforesaid address.



22









 





     (c) Unless the Agent shall have received notice from a Bank prior to the date of any Borrowing
that such Bank will not make available to the Agent such Bank’s share of such Borrowing, the Agent
may assume that such Bank has made such share available to the Agent on the date of such Borrowing
in accordance with subsection (b) of this Section 2.04 and the Agent may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so made such share available to the Agent, such Bank and the
Borrower severally agree to repay to the Agent, within one Domestic Business Day after demand, such
corresponding amount together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the Agent, at (i) in the case of
the Borrower, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank, the Federal Funds
Rate. If such Bank shall repay to the Agent such corresponding amount, such amount so repaid shall
constitute such Bank’s Loan included in such Borrowing for purposes of this Agreement.



     (d) No Bank shall be responsible for the failure or delay by any other Bank in its obligation
to make its ratable share of a Borrowing hereunder; provided, however, that the failure of
any Bank to fulfill its obligations hereunder shall not relieve any other Bank of its obligations
hereunder.



     (e) Except as otherwise expressly provided in this Agreement, if any Credit Party shall fail
to remit to any other Credit Party an amount payable by such first Credit Party to such other
Credit Party pursuant to this Agreement on the date when such amount is due, such payments shall be
made by such first Credit Party together with interest thereon for each date from the date such
amount is due until the date such amount is paid to such other Credit Party at a rate per annum
equal to the Federal Funds Rate.



     (f) The Swingline Bank may, at any time, in its sole discretion, by written notice to the
Borrower and the Banks, demand repayment of its Swingline Loans by way of a Committed Loan, in
which case the Borrower shall be deemed to have requested a Committed Loan comprised solely of Base
Rate Loans in the amount of such Swingline Loans; provided, however, that any such demand
shall be deemed to have been given one Domestic Business Day prior to (a) the Termination Date, and
(b) upon acceleration of the Loans and other obligations under this Agreement pursuant to Section
6.01. Each Bank hereby irrevocably agrees to make its pro rata share (based on its Percentage) of
each such Committed Loan in the amount, in the manner and on the date specified in the preceding
sentence notwithstanding (a) the amount of such Borrowing may not comply with the minimum
amount for advances of Committed Loans otherwise required hereunder, (b) whether any conditions
specified in Section 3.02 are then satisfied, (c) whether a Default or an Event of Default then
exists, (d) failure of any such request or deemed request for a Committed Loan to be made by the
time otherwise required hereunder, (e) whether the date of such Borrowing is a date on which
Committed Loans are otherwise permitted to be made hereunder, (f) any termination of the
Commitments immediately prior to or contemporaneously with such Borrowing, or (g) any other reason
whatsoever. In the event that any Committed Loan cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the commencement of a
proceeding under federal bankruptcy laws with respect to the Borrower), or if the Swingline Bank
otherwise demands the purchase of participations in its Swingline Loans, then each Bank hereby
agrees that it shall forthwith purchase (as of the date such Borrowing would



23









 





otherwise have occurred or the date demanded by the Swingline Bank, but adjusted for any payments
received from the Borrower on or after such date and prior to such purchase) from the Swingline
Bank a participation interest in the outstanding Swingline Loans in such amount as shall be
necessary to cause each Bank to share in such Swingline Loans ratably based upon its Percentage
(determined immediately before giving effect to any expiration or other termination of the
aggregate Commitments), provided that (A) all interest payable on the Swingline Loans shall
be for the account of the Swingline Bank until the date as of which such participation interest is
funded and (B) at the time any purchase of such participation interest pursuant to this sentence is
actually made, the purchasing Bank shall be required to pay to the Swingline Bank, to the extent
not paid to the Swingline Bank by the Borrower in accordance with the terms of Section 2.07,
interest on the principal amount of participation interests purchased for each day from and
including the day upon which such Borrowing would otherwise have occurred to but excluding the date
of payment for such participation interests, at a rate equal to the Federal Funds Rate.




     Section 2.05 Notes; Loan Accounts; Records.



     (a) The Loans of each Bank shall be evidenced by one or more accounts maintained by such Bank
on behalf of its Applicable Lending Office in accordance with paragraph (d) below.



     (b) The Borrower hereby agrees that if any Bank requests a promissory note to evidence the
Loans of such Bank, the Borrower shall promptly execute and deliver to such Bank a promissory note
substantially in the form of Exhibit A attached hereto, payable to the order of such Bank. In
addition, each Bank may, by notice to the Borrower and the Agent, request that its Loans of a
particular type be evidenced by a separate Note in an amount equal to the aggregate unpaid
principal amount of such Loans. Each such Note shall be in substantially the form of Exhibit A
hereto with appropriate modifications to reflect the fact that it evidences solely Loans of the
relevant type. Each reference in this Agreement to the “Note” of such Bank shall be deemed to
refer to and include any or all of such Notes, as the context may require.



     (c) Promptly after receipt of any Bank’s Note pursuant to Section 3.01(b), the Agent shall
forward such Note to such Bank.




(d) (i) Each Bank shall maintain an account or accounts evidencing each Loan made by such
Bank to the Borrower from time to time, including the amounts of principal and interest
payable and paid to such Bank from time to time under this Agreement. Each Bank will make
reasonable efforts to maintain the accuracy of its account or accounts and to promptly
update its account or accounts from time to time, as necessary.




     (ii) The Agent shall maintain the Register pursuant to Section 9.06 and a subaccount
for each Bank, in which Register and subaccounts (taken together) shall be recorded (A) the
amount, type and Interest Period, if any, of each such Loan hereunder, (B) the amount of any
principal or interest due and payable or to become due and payable to each Bank hereunder
and (C) the amount of any sum received by the Agent hereunder from or for the account of the
Borrower and each Bank’s share thereof. The Agent will make reasonable efforts to maintain
the accuracy of the subaccounts referred to in the preceding sentence and to promptly update
such subaccounts from time to time, as necessary.



24









 






     (iii) The entries made in the accounts, Register and subaccounts maintained pursuant to
subsection (ii) above (and, if consistent with the entries of the Agent, subsection (i)
above) shall be prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of any Bank or the
Agent to maintain any such account, such Register or such subaccount, as applicable, or any
error therein, shall not in any manner affect the obligation of the Borrower to repay the
Loans and other amounts owing hereunder to such Bank.



     Section 2.06 Maturity of Loans.



     (a) Each Committed Loan shall mature, and the principal amount thereof shall be due and
payable (together with accrued and unpaid interest thereon), on the Termination Date.



     (b) Each Swingline Loan shall mature, and the principal amount thereof shall be due and
payable (together with accrued and unpaid interest thereon), on the last day of the Interest Period
applicable to such Borrowing.



     (c) Each Money Market Loan included in any Money Market Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.



     Section 2.07 Interest Rates.



     (a) Each Base Rate Loan shall bear interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until it becomes due, at a rate per annum equal to the
Base Rate for such day. Such interest shall be payable quarterly in arrears on each Quarterly Date
and, with respect to the principal amount of any Base Rate Loan converted to a Euro-Dollar Loan, on
the date such amount is so converted. Any overdue principal of or interest on any Base Rate Loan
(and any overdue fees) shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Base Rate for such day.



     (b) Each Euro-Dollar Loan shall bear interest on the outstanding principal amount thereof, for
each day during each Interest Period applicable thereto, at a rate per annum equal to the sum of
the Euro-Dollar Margin for such day plus the Adjusted London Interbank Offered Rate applicable to
such Interest Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, at the end of each three month
interval after the first day thereof.



     The “Adjusted London Interbank Offered Rate” applicable to any Interest Period means a rate
per annum equal to the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of
1%) by dividing (i) the applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.



     The “London Interbank Offered Rate” applicable to any Interest Period means the rate per annum
(rounded upward, if necessary, to the next higher 1/100th of 1%) in each case determined
by the Agent to be equal to:



25









 






     (i) the offered rate that appears on the Dow Jones Telerate Screen Page 3750 (or any
successor page) that displays an average British Bankers Association Interest Settlement
Rate for deposits in Dollars (for delivery on the first day of the applicable Interest
Period) for a term (and having a maturity) equivalent to the applicable Interest Period at
approximately 11:00 a.m. (London time) two Euro-Dollar Business Days prior to the first day
of the applicable Interest Period; or




     (ii) if for any reason the foregoing rate in clause (i) is unavailable or
undeterminable, the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of the applicable Interest Period) for a term (and having a
maturity) equivalent to the applicable Interest Period at approximately 11:00 a.m. (London
time) two Euro-Dollar Business Days prior to the first day of the applicable Interest
Period; or




     (iii) if for any reason the foregoing rates in clauses (i) and (ii) are unavailable or
undeterminable, the rate of interest at which deposits in Dollars for delivery on the first
day of the applicable Interest Period in same day funds in the approximate amount of BNY’s
Percentage of the applicable Euro-Dollar Loan (but in no event less than $1,000,000) for a
term (and having a maturity) equivalent to the applicable Interest Period would be offered
by the London branch of BNY to leading banks in the London interbank market at approximately
11:00 a.m. (London time) two Euro-Dollar Business Days prior to the first day of the
applicable Interest Period.



     “Euro-Dollar Reserve Percentage” means for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve requirement (including any marginal,
special, emergency or supplemental reserves) for a member bank of the Federal Reserve System in New
York City with deposits exceeding five billion dollars in respect of “Eurocurrency liabilities”.
The Adjusted London Interbank Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve Percentage.



     (c) Any overdue principal of or interest on any Euro-Dollar Loan shall bear interest, payable
on demand, for each day from and including the date payment thereof was due to but excluding the
date of actual payment, at a rate per annum equal to the sum of 2% plus the higher of (i) the sum
of the Euro-Dollar Margin for such day plus the Adjusted London Interbank Offered Rate applicable
to such Loan on the day before such payment was due and (ii) the Euro-Dollar Margin for such day
plus the quotient obtained (rounded upward, if necessary, to the next higher 1/100 of 1%) by
dividing (x) the rate per annum (rounded upward, if necessary, to the next higher 1/100 of 1%) at
which one day (or, if such amount due remains unpaid more than three Euro-Dollar Business Days,
then for such other period of time not longer than three months as the Agent may select) deposits
in dollars in an amount approximately equal to such overdue payment is offered by the London branch
of BNY to leading banks London interbank market for the applicable period by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a) or (b) of Section
8.01 shall exist, at a rate per annum equal to the sum of 2% plus the Base Rate for such day).



26









 





     (d) Each Swingline Loan shall bear interest on the outstanding principal amount thereof, for
each day from the date such Loan is made until it becomes due, at a rate per annum equal to (i) in
the case of Base Rate Swingline Loans, the Base Rate for such day and (ii) in the case of each
Quoted Rate Swingline Loan, the Quoted Rate applicable thereto for such day. Such interest shall
be payable (1) in the case of each Quoted Rate Swingline Loan, on the last day of the Interest
Period applicable thereto, and (2) in the case of each Base Rate Swingline Loan, quarterly in
arrears on each Quarterly Date. Any overdue principal of or interest on any Swingline Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of
2% plus the Base Rate for such day.



     (e) Subject to Section 8.01(a), each Money Market LIBOR Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable thereto, at rate per annum
equal to the sum of the London Interbank Offered Rate for such Interest Period (determined in
accordance with Section 2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
Euro-Dollar Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making such Loan
in accordance with Section 2.03. Each Money Market Absolute Rate Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per
annum equal to the Money Market Absolute Rate quoted by the Bank making such Loan in accordance
with Section 2.03. Such interest shall be payable for each Interest Period on the last day thereof
and if such Interest Period is longer than three months, at the end of each three month interval
after the first day thereof. Any overdue principal of or interest on any Money Market Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum equal to the sum of
2% plus the Base Rate for such day.



     (f) The Agent shall determine each interest rate applicable to the Loans hereunder. The Agent
shall give prompt notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of manifest error.



     Section 2.08 Fees.



          (a) Facility Fee. The Borrower shall pay to the Agent for the account of each Bank a facility
fee for each day at the “Facility Fee Rate” for such day (determined in accordance with the Pricing
Schedule). Such facility fee shall accrue for each day (i) from and including the Closing Date to
but excluding the Termination Date (or earlier date of termination of the Commitments in their
entirety) on the amount of such Bank’s Commitment (whether used or unused) on such day and (ii)
after the Termination Date (or earlier date of termination of the Commitments in their entirety),
on such Bank’s share of the Aggregate Usage. Fees accrued under this Section shall be payable
quarterly in arrears (i) on each Quarterly Date, (ii) on the date on which the Commitments
terminate in their entirety, (iii) following the Termination Date, on demand, and (iv) on each
optional reduction of the Commitments, to the extent thereof.




          (b) Agent’s Fees. The Borrower shall pay to the Agent for its own account fees in the amounts
and at the times previously agreed upon between the Borrower and the Agent.





27









 






     Section 2.09 Optional Termination or Reduction of Commitments.



     The Borrower may, upon at least three Domestic Business Days’ notice to the Agent (or such
shorter period as the Agent may agree), (i) terminate the Commitments at any time, if no Loans or
LC Liabilities are outstanding at such time, (ii) ratably reduce from time to time by an aggregate
amount of $5,000,000 or any larger integral multiple of $1,000,000, the aggregate amount of the
Commitments in excess of the Aggregate Usage or (iii) reduce from time to time by an aggregate
amount of $5,000,000 or any larger multiple of $1,000,000, the Swingline Commitment Amount in
excess of the outstanding amount of the Swingline Loans.



     Section 2.10 Method of Electing Interest Rates.




     (i) The Loans included in each Committed Borrowing shall bear interest initially at the
Euro-Dollar Rate or the Base Rate, as specified by the Borrower in the applicable Notice of
Committed Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each case to the
provisions of Article 8), as follows:




     (A) if such Loans are Base Rate Loans, the Borrower may elect to convert such
Loans to Euro-Dollar Loans as of any Euro-Dollar Business Day, and




     (B) if such Loans are Euro-Dollar Loans, the Borrower may elect to convert such
Loans to Base Rate Loans or elect to continue such Loans as Euro-Dollar Loans for an
additional Interest Period, in each case effective on the last day of the then
current Interest Period applicable to such Loans.




provided that (i) no Loan may be converted into a Euro-Dollar Loan when any Event of
Default has occurred and is continuing and the Administrative Agent has or the Required
Banks have determined that such a conversion is not appropriate and (ii) no Loan may be
converted into a Euro-Dollar Loan after the date that is one month prior to the Termination
Date. Each such election shall be made by delivering a notice (a “Notice of Interest Rate
Election”) to the Agent at least three Euro-Dollar Business Days before the conversion or
continuation selected in such notice is to be effective. A Notice of Interest Rate Election
may, if it so specifies, apply to only a portion of the aggregate principal amount of the
relevant Group of Loans; provided that (i) such portion is allocated ratably among
the Loans comprising such Group and (ii) the portion to which such Notice applies, and the
remaining portion to which it does not apply are each $10,000,000 or any larger multiple of
$1,000,000.




     (ii) Each Notice of Interest Rate Election shall specify:




     (A) the Group of Loans (or portion thereof) to which such notice applies;




     (B) the date on which the conversion or continuation selection in such notice
is to be effective, which shall comply with the applicable clause of subsection (a)
above;



28









 






     (C) if the Loans comprising such Group are to be converted, the new type of
Loans and, if such new Loans are Euro-Dollar Loans, the duration of the additional
Interest Period applicable thereto; and




     (D) if such Loans are to be continued as Euro-Dollar Loans for an additional
Interest Period, the duration of such additional Interest Period.




Each Interest Period specified in a Notice of Interest Rate Election shall comply with the
provisions of the definition of Interest Period.




     (iii) Upon receipt of Notice of Interest Rate Election from the Borrower pursuant to
subsection (a) above, the Agent shall promptly notify each Bank of the contents thereof and
such notice shall not thereafter be revocable by the Borrower. If the Borrower fails to
deliver a timely Notice of Interest Rate Election to the Agent for any Group of Euro-Dollar
Rate Loans, such Loans shall be converted to Base Rate Loans on the last day of the then
current Interest Period applicable thereto.



     Section 2.11 Mandatory Termination of Commitments.



     Unless previously terminated, the Commitments shall terminate on the Termination Date, and all
Loans and LC Liabilities (whether or not contingent) then outstanding (together with accrued
interest thereon) shall be due and payable on such date.



     Section 2.12 Optional Payments.



     (a) The Borrower may (i) upon the same Domestic Business Day’s notice to the Agent, prepay any
Base Rate Loans (or any Money Market Borrowing bearing interest at the Base Rate pursuant to
Section 8.01(a)) in whole at any time, or from time to time in part, in amounts aggregating
$500,000 or any larger integral multiple of $100,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment, (ii) upon at least three
Euro-Dollar Business Days’ notice to the Agent, prepay any Group of Euro-Dollar Loans, in whole at
any time, or from time to time in part, in amounts aggregating $5,000,000 or any larger integral
multiple of $1,000,000, by paying the principal amount to be prepaid together with accrued interest
thereon to the date of prepayment, or (iii) at any time prepay any Swingline Loans. Each such
optional prepayment shall be applied to prepay ratably the Loans of the several Banks included in
such Group or Borrowing. In connection with any such prepayment of any Euro-Dollar Loan, the
Borrower shall comply with the provisions of Section 2.14.



     (b) Except as provided in subsection (a) above, the Borrower may not prepay all or any portion
of the principal amount of any Money Market Loan or Quoted Rate Swingline Loan prior to the
maturity thereof.



     (c) Upon receipt of a notice of prepayment of Committed Loans pursuant to this Section, the
Agent shall promptly notify each Bank of the contents thereof and of such Bank’s ratable share (if
any) of such prepayment and such notice shall not thereafter be revocable by the Borrower.



29









 





     Section 2.13 General Provisions as to Payment.



     (a) The Borrower shall make each payment of principal of, and interest on, the Loans and of
fees hereunder, and (except to the extent otherwise provided in Section 2.16) the Reimbursement
Obligations, not later than 1:00 P.M. (New York City time) on the date when due, in Federal or
other funds immediately available in New York City, without condition or deduction for any
counterclaim, defense, recoupment or setoff, to the Agent at its address referred to in Section
9.01. The Agent will promptly distribute (i) to each Bank its ratable share of each such payment
received by the Agent for the account of the Banks, (ii) to each LC Issuing Bank each payment
received by the Agent for the account of such LC Issuing Bank, and (iii) to the Swingline Bank each
payment received by the Agent for the account of the Swingline Bank. Whenever any payment of
principal of, or interest on, the Base Rate Loans, the Swingline Loans, the Money Market Absolute
Rate Loans or of fees shall be due on a day which is not a Domestic Business Day, the date for
payment thereof shall be extended to the next succeeding Domestic Business Day. Whenever any
payment of principal of, or interest on, the Euro-Dollar Loans or the Money Market LIBOR Loans
shall be due on a day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal is extended in
accordance with this Section 2.13, by operation of law or otherwise, interest thereon shall be
payable for such extended time.



     (b) Unless the Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Banks hereunder that the Borrower will not make such payment in full, the
Agent may assume that the Borrower has made such payment in full to the Agent on such date and the
Agent may, in reliance upon such assumption, cause to be distributed to each Bank on such due date
an amount equal to the amount then due such Bank. If and to the extent that the Borrower shall not
have so made such payment, each Bank shall repay to the Agent forthwith on demand such amount
distributed to such Bank together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the Agent, at the Federal
Funds Rate.



     Section 2.14 Funding Losses.



     If the Borrower makes any payment of principal with respect to any Fixed Rate Loan, or any
Euro-Dollar Loan is converted to a Base Rate Loan (whether such payment or conversion is pursuant
to Articles 2, 6 or 8 or otherwise) on any day other than the last day of an Interest Period
applicable thereto, or the last day of an applicable period fixed pursuant to
Section 2.07(c), or if the Borrower fails to borrow any Fixed Rate Loan, or to prepay, convert
or continue any Euro-Dollar Loan, after notice has been given to any Bank in accordance with
Sections 2.04(a) or 2.10(a), the Borrower shall pay to each Bank within 15 days after demand an
amount calculated as provided in Exhibit G hereto to indemnify such Bank for any loss incurred by
it (or by an existing or scheduled Participant in the related Loan) in obtaining, liquidating or
employing deposits from third parties, provided that such Bank shall have delivered to the
Borrower a certificate setting forth such amount and the calculation thereof in reasonable detail.



30









 





     Section 2.15 Computation of Interest and Fees.



     Interest based on the Prime Rate hereunder shall be computed on the basis of a year of 365
days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the
first day but excluding the last day). All other interest and all letter of credit fees and
facility fees shall be computed on the basis of a year of 360 days and paid for the actual number
of days elapsed (including the first day but excluding the last day).



     Section 2.16 Letters of Credit.



     (a) General. Subject to the terms and conditions set forth herein, the Borrower may at any
time and from time to time prior to the Termination Date request the issuance of Letters of Credit
by an LC Issuing Bank for its own account, and the amendment, renewal (other than with respect to
any Auto-Renewal LC) or extension of any Letter of Credit, in each case in form and substance
reasonably acceptable to the Agent and such LC Issuing Bank. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions of any form of
letter of credit application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, any LC Issuing Bank relating to any Letter of Credit, the terms and conditions
of this Agreement shall control.



     (b) (i) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request the
issuance of a Letter of Credit (or the amendment, renewal (other than with respect to any
Auto-Renewal LC) or extension of an outstanding Letter of Credit, the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing so have been
approved by the applicable LC Issuing Bank) to the applicable LC Issuing Bank and the Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which
shall be a Domestic Business Day), the date on which such Letter of Credit is to expire (which
shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and
address of the beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the applicable LC Issuing Bank, the
Borrower also shall submit a letter of credit application on such LC Issuing Bank’s standard form
in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension, the LC Issuing Bank Exposure of such LC Issuing Bank
would not exceed its LC Commitment. The Agent will, upon request of any LC Issuing Bank, confirm
the Aggregate Usage. Notwithstanding anything to the contrary contained in this Agreement (1) no LC Issuing Bank
shall be obligated to issue, amend, renew or extend any Letter of Credit at a time when any Bank
shall be in default of its obligations hereunder unless arrangements to eliminate such LC Issuing
Bank’s risk with respect to such Bank’s participation in such Letter of Credit shall have been made
for the benefit of such LC Issuing Bank and such arrangements are satisfactory to such LC Issuing
Bank, and (2) no LC Issuing Bank shall issue, amend, renew or extend any Letter of Credit if, no
later than one Domestic Business Day prior to the date of such issuance, amendment, renewal or
extension, it shall have received written notice from the Agent or



31









 





Required Lenders that the
conditions set forth in Section 3.02 with respect thereto have not been satisfied.




     (ii) Auto-Renewal LCs. If the Borrower so requests in any Letter of Credit request, the
applicable LC Issuing Bank may, in its sole and absolute discretion, agree to issue a Letter of
Credit that has automatic renewal provisions (each, an “Auto-Renewal LC”); provided that
any such Auto-Renewal LC must permit the applicable LC Issuing Bank to prevent any such renewal at
least once in each twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice not later than the day in each such twelve-month period specified in
such Letter of Credit (the “Non-Renewal Date”). Unless otherwise directed by the LC Issuing Bank,
the Borrower shall not be required to make a specific request to the LC Issuing Bank for any such
renewal.



     (c) Expiration Date. Each Letter of Credit (other than an Auto-Renewal LC) shall expire at or
prior to the close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date that is five Domestic Business Days prior to the
Termination Date.



     (d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of
Credit increasing the amount thereof) and without any further action on the part of any LC Issuing
Bank or the Banks, the LC Issuing Bank in respect of such Letter of Credit hereby grants to each
Bank, and each Bank hereby acquires from such LC Issuing Bank, a participation in such Letter of
Credit equal to such Bank’s Percentage as of the date thereof of the aggregate amount available to
be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each
Bank hereby absolutely and unconditionally agrees to pay to the Agent, for the account of such LC
Issuing Bank, such Bank’s participation percentage of each LC Disbursement made by such LC Issuing
Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.
Each Bank acknowledges and agrees that its obligation to acquire participations pursuant to this
paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or termination of the
Commitments, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.



     (e) Reimbursement. If any LC Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Agent an
amount equal to such LC Disbursement not later than 2:00 p.m., New York City
time, on the date that such LC Disbursement is made or the next Business Day if the Borrower
has requested a Committed Loan to finance such reimbursement, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date, then not later than
2:00 p.m., New York City time, on the Business Day immediately following the day that the Borrower
receives such notice or the next Business Day if the Borrower has requested a Committed Loan to
finance such reimbursement; provided that, the Borrower may, subject to the conditions to
borrowing set forth herein, request in accordance with Section 2.02 that such



32









 





payment be financed
with (X) a Base Rate Borrowing (notwithstanding the fact that such LC Disbursement may be less than
the Minimum Committed Amount), or (Y) a Swingline Loan (notwithstanding the fact that such LC
Disbursement may be less than the Minimum Swingline Amount), in each case in an equivalent amount
and, accordingly, the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting Base Rate Borrowing or Swingline Loan, as the case may be. If the Borrower fails
to make such payment when due, the Agent shall notify each Bank of the applicable LC Disbursement,
the payment then due from the Borrower in respect thereof and such Bank’s share thereof. Promptly
following receipt of such notice, each Bank shall pay to the Agent its share of the payment then
due from the Borrower, in the same manner as provided in Section 2.04 with respect to Loans made by
such Bank (and Section 2.04 shall apply, mutatis mutandis, to the payment obligations of the
Banks), and the Agent shall promptly pay to such LC Issuing Bank the amounts so received by it from
the Banks. Promptly following receipt by the Agent of any payment from the Borrower pursuant to
this paragraph, the Agent shall distribute such payment to such LC Issuing Bank or, to the extent
that Banks have made payments pursuant to this paragraph for the account of such LC Issuing Bank,
then to such Banks and the LC Issuing Bank as their interests may appear. Any payment made by a
Bank pursuant to this paragraph for the account of such LC Issuing Bank for any LC Disbursement
(other than the funding of a Base Rate Borrowing or a Swingline Loan as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.




     (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided
in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit
or this Agreement, or any term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable LC
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Agent, the Banks nor any LC Issuing Bank shall
have any liability or responsibility by reason of or in connection with the issuance, amendment,
renewal, extension or transfer of any Letter of Credit or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the applicable LC
Issuing Bank; provided that the foregoing provisions of this clause (f) shall not be
construed to excuse any LC Issuing Bank from liability to the Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by
such LC Issuing Bank’s failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that, in the absence of gross negligence or willful misconduct on the part of such



33









 





LC Issuing
Bank (as finally determined by a court of competent jurisdiction), such LC Issuing Bank shall be
deemed to have exercised care in each such determination. In furtherance of the foregoing and
without limiting the generality thereof, the parties agree that, with respect to documents
presented which appear on their face to be in substantial compliance with the terms of a Letter of
Credit, the applicable LC Issuing Bank may, in its sole discretion, either accept and make payment
upon such documents without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such documents if such
documents are not in strict compliance with the terms of such Letter of Credit.




     (g) Disbursement Procedures. Each LC Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit issued by such LC Issuing Bank. Such LC Issuing Bank shall promptly notify the Agent and
the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether such LC
Issuing Bank has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse such LC Issuing Bank or otherwise make payments to the Banks with respect to any such LC
Disbursement.



     (h) Interim Interest. If any LC Issuing Bank shall make any LC Disbursement, then, unless the
Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement,
at the rate per annum then applicable to Base Rate Borrowings; provided that, if the
Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then such unpaid amount shall bear interest at a rate per annum equal to 2% plus the Base
Rate. Interest accrued pursuant to this paragraph shall be for the account of the applicable LC
Issuing Bank, except that interest accrued on and after the date of payment by any Bank pursuant to
paragraph (e) of this Section for the account of such LC Issuing Bank shall be for the account of
such Bank to the extent of such payment.



     (i) Cash Collateralization. If any Event of Default shall occur and be continuing, on the
Domestic Business Day that the Borrower receives notice from the Agent or the Required Banks (or,
if the maturity of the Loans has been accelerated, Banks with LC Exposure representing greater than
50% of the total LC Liabilities) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Agent, in the name of the Agent and
for the benefit of the Banks, an amount in cash equal to the LC Liabilities as of such date plus
any accrued and unpaid interest thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in clause (g) or
(h) of Section 6.01. Such deposit shall be held by the Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such account. Other than
any interest earned on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Agent and at the Borrower’s risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall be applied by the Agent to reimburse the LC Issuing



34









 





Banks for
LC Disbursements for which they have not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
Banks with LC Liabilities representing greater than 50% of the total LC Liabilities), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or waived or all obligations
hereunder have been paid (except for obligations which survive termination and are not then owing).




     (j) LC Fees. The Borrower shall pay to the Agent, for the account of the Banks ratably (prior
to the expiration or other termination of the aggregate Commitments, in accordance with their
respective Percentages and, thereafter, in accordance with their participation interests in the LC
Liabilities), a letter of credit fee at (i) the LC Fee Rate on the aggregate amount available for
drawings under each Letter of Credit (other than Workers’ Compensation Letters of Credit)
outstanding from time to time and (ii) the LC Fee Rate minus 0.05% per annum on the aggregate
amount available for drawings under each Workers’ Compensation Letter of Credit outstanding from
time to time . Each such fee shall be payable in arrears on the last day of each fiscal
quarter of the Borrower for so long as such Letter of Credit is outstanding and on the expiry date
thereof. The Borrower shall pay to each LC Issuing Bank additional fronting fees and expenses in
the amounts and at the times agreed between the Borrower and such LC Issuing Bank. The LC Issuing
Banks shall furnish to the Agent upon request such information as the Agent shall require in order
to calculate the amount of any fee payable under this subsection (j). “LC Fee Rate” means, for any
day, a rate per annum equal to the Euro-Dollar Margin for such day.



     (k) LC Commitment Adjustment. The Borrower shall promptly notify the Agent of any adjustment
agreed to between the Borrower and an LC Issuing Bank in the LC Commitment of such LC Issuing Bank.



     Section 2.17 Maximum Interest Rate.



     (a) Nothing contained in this Agreement or the Notes shall require the Borrower to pay
interest for the account of any Bank at a rate exceeding the maximum rate permitted by applicable
law.



     (b) If the amount of interest payable for the account of any Bank on any interest payment date
in respect of the immediately preceding interest computation period, computed


 pursuant to Sections 2.07 and 2.15, would exceed the maximum amount permitted by applicable
law to be charged by such Bank, the amount of interest payable for its account on such interest
payment date shall be automatically reduced to such maximum permissible amount.



     (c) If the amount of interest payable for the account of any Bank in respect of any interest
computation period is reduced pursuant to subsection (b) of this Section and the amount of interest
payable for its account in respect of any subsequent interest computation period, computed pursuant
to Sections 2.07 and 2.15, would be less than the maximum amount



35









 





permitted by applicable law to be
charged by such Bank, then the amount of interest payable for its account in respect of such
subsequent interest computation period shall be automatically increased to such maximum permissible
amount; provided that at no time shall the aggregate amount by which interest paid for the
account of any Bank has been increased pursuant to this subsection (c) exceed the aggregate amount
by which interest paid for its account has theretofore been reduced pursuant to subsection (b) of
this Section.




ARTICLE 3

CONDITIONS




     Section 3.01 Conditions to Effectiveness.



     This Agreement shall become effective as of the date (the “Closing Date”) when all of the
following conditions to effectiveness shall be satisfied:



     (a) the Agent shall have received counterparts hereof signed by each of the parties hereto
(or, in the case of any party as to which an executed counterpart shall not have been received, the
Agent shall have received in form satisfactory to it of facsimile or other written confirmation
from such party that it has executed a counterpart hereof);



     (b) the Agent shall have received a duly executed Note for the account of each Bank requesting
the same dated as of the Closing Date complying with the provisions of Section 2.05;



     (c) the Agent shall have received counterparts of a Subsidiary Guaranty Agreement,
substantially in the form of Exhibit F hereto, duly executed by each of the Obligors listed on the
signature pages thereof;



     (d) the Agent shall have received an opinion of legal counsel for the Borrower relating to the
transactions contemplated hereby, in form and substance reasonably satisfactory to the Agent;



     (e) receipt by the Agent of verification, in form and substance reasonably satisfactory to the
Agent, that the Borrower’s Existing Credit Agreement has been terminated and all loans and other
amounts owing thereunder have been paid in full (or will be paid in full with the initial Loan
advance hereunder) (provided that letters of credit that remain outstanding under the
Existing Credit Agreement shall either be supported by Letters of Credit issued under this
Agreement or become Letters of Credit under this Agreement);



     (f) the Agent shall have received all documents the Agent may reasonably request relating to
the existence of the Obligors, the corporate authority for and the validity of the
Financing Documents and any other matters relevant hereto, all in form and substance
satisfactory to the Agent; and



     (g) certification by the Borrower that the Borrower has paid all fees and expenses owing on
the Closing Date by the Borrower to the Credit Parties;



The Agent shall promptly notify each of the other Credit Parties and the Borrower of the Closing
Date, and such notice shall be conclusive and binding on all parties hereto.




36









 








     Section 3.02 Credit Extensions.



     In addition to the requirements set forth in Section 3.01, the obligation of any Bank to make
a Loan on the occasion of any Borrowing and the obligation of an LC Issuing Bank to issue, amend,
renew or extend a Letter of Credit on the occasion of a request therefor by the Borrower are each
subject to the satisfaction of the following conditions (in addition to those set forth in Section
2.16(d), if applicable):




     (a) receipt (i) by the Agent of a Notice of Borrowing as required by Section 2.02 or
2.03, as the case may be, in the case of a Borrowing or (ii) by such LC Issuing Bank of a
notice as required by Section 2.16, in the case of a Letter of Credit;




     (b) the fact that, after giving effect to such Credit Extension, the Aggregate Usage
will not exceed the aggregate amount of the Commitments;




     (c) the fact that, immediately before and after such Credit Extension, no Default shall
have occurred and be continuing;




     (d) the fact that the representations and warranties of the Borrower contained in this
Agreement (other than the representations and warranties set forth in Sections 4.04(c),
4.05(a), 4.06, 4.07 and 4.11(b)) shall be true in all material respects on and as of the
date of such Credit Extension; and




     (e) with respect to any Credit Extension to be made on the Closing Date, the fact that
the representations and warranties of the Borrower contained in Sections 4.04(c), 4.05(a),
4.06, 4.07 and 4.11(b) shall be true in all material respects on and as of the Closing Date.



Each Credit Extension shall be deemed to be a representation and warranty by the Borrower on the
date of such Credit Extension as to the facts specified in clauses (b), (c) and (d) of this
Section. Each Credit Extension arising out of an Auto-Renewal LC shall be deemed to occur on the
last Domestic Business Day upon which the LC Issuing Bank that issued such Auto-Renewal LC could
have, in accordance with the terms of such Auto-Renewal LC, given notice the effect of which would
have been to prevent the automatic renewal of such Auto-Renewal LC.




ARTICLE 4

REPRESENTATIONS AND WARRANTIES




     The Borrower represents and warrants to the Agent and the Banks that:



     Section 4.01 Corporate Existence and Power.



     The Borrower (a) is a corporation duly incorporated, validly existing and in good standing
under the laws of Delaware, and (b) has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its business as now
conducted, except, with respect to clause (b), where failure to do so could not reasonably be



37









 





expected to have a material adverse effect on the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a whole.




     Section 4.02 Corporate and Governmental Authorization; No Contravention.



     The execution, delivery and performance by each Obligor of the Financing Documents to which it
is a party are within its corporate or limited liability company powers, as the case may be, have
been duly authorized by all necessary corporate or limited liability company action, as the case
may be, require no material action by or in respect of, or material filing with, any governmental
body, agency or official and do not contravene, or constitute a default under, any material
provision of any applicable law or regulation or of the certificate of incorporation or by-laws or
certificate of formation or operating agreement, as the case may be, of such Obligor or of any
material agreement, judgment, injunction, order, decree or other instrument binding upon such
Obligor or any Subsidiary or result in the creation or imposition of any Lien on any material asset
of such Obligor or any Subsidiary.



     Section 4.03 Binding Effect.



     This Agreement constitutes a valid and binding agreement of the Borrower and the Notes, when
executed and delivered in accordance with this Agreement, will constitute valid and binding
obligations of the Borrower, in each case enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general
principles of equity (regardless of whether considered in a proceeding at law or in equity). The
Subsidiary Guaranty Agreement, when executed and delivered by each Obligor, will constitute a valid
and binding agreement of such Obligor, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and general
principles of equity (regardless of whether considered in a proceeding at law or in equity).



     Section 4.04 Financial Information.



     (a) The consolidated balance sheet of the Borrower and its Consolidated Subsidiaries as of
December 31, 2003 and the related statements of consolidated income, consolidated cash flows and
consolidated shareholders’ equity for the fiscal year then ended, reported on by KPMG LLP and set
forth in the Borrower’s 2003 Annual Report to Shareholders, a copy of which has been delivered to
the Agent (for posting on Intralinks for the Banks or otherwise), fairly present, in conformity
with generally accepted accounting principles, the consolidated financial position
of the Borrower and its Consolidated Subsidiaries as of such date and their consolidated
results of operations and cash flows for such fiscal year.



     (b) The unaudited condensed consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of September 30, 2004 and the related unaudited condensed statements of
consolidated income and consolidated cash flows for the three months then ended, set forth in the
Borrower’s quarterly report for the fiscal quarter ended September 30, 2004 as filed with the
Securities and Exchange Commission on Form 10-Q, a copy of which has been delivered to the Agent,
fairly present, on a basis consistent with the financial statements referred to in subsection (a)
of this Section (except as otherwise disclosed therein), the consolidated



38









 





financial position of the
Borrower and its Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such nine-month period (subject to normal year-end adjustments and
the absence of footnotes).




     (c) As of the Closing Date, there has been no material adverse change since December 31, 2003
in the business, financial position or results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole.



     Section 4.05 Litigation.



     There is no action, suit or proceeding pending against, or to the knowledge of the Borrower
threatened against the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official (a) as of the Closing Date, which could reasonably be
expected to have a material adverse effect on the business, financial position or results of
operations of the Borrower and its Consolidated Subsidiaries, considered as a whole, or (b) which
in any manner draws into question the validity of any Financing Document.



     Section 4.06 Compliance with ERISA.



     As of the Closing Date, each member of the ERISA Group has fulfilled its obligations under the
minimum funding standards of ERISA and the Internal Revenue Code with respect to each Plan and is
in compliance in all respects with the presently applicable provisions of ERISA and the Internal
Revenue Code with respect to each Plan, except to the extent that noncompliance could not
reasonably be expected to result, individually or in the aggregate, in a material adverse effect on
the business, financial position or results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole. As of the Closing Date, no member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the Internal Revenue Code in
respect of any Plan, (ii) failed to make any contribution or payment to any Plan or Multiemployer
Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit
Arrangement, which has resulted in the imposition of a Lien or the posting of a bond or other
security under ERISA or the Internal Revenue Code, except to the extent such Lien, bond or other
security could not reasonably be expected to result, individually or in the aggregate, in a
material adverse effect on the business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, or (iii) incurred any liability
under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA, except to the extent such liability could not reasonably be expected to result, individually
or in the aggregate, in a material
adverse effect on the business, financial position or results of operations of the Borrower
and its Consolidated Subsidiaries, considered as a whole.



     Section 4.07 Environmental Matters.



     As of the Closing Date, to the knowledge of the Borrower, liabilities and costs of the
Borrower and its Subsidiaries associated with compliance with Environmental Laws are unlikely
(after taking into account the Borrower’s reserves for such liabilities and costs) to result in a
material adverse effect on the business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole.



39









 





     Section 4.08 Taxes.



     The Borrower and its Subsidiaries have filed all United States Federal income tax returns and
all other material tax returns which are required to be filed by them and have paid all taxes due
pursuant to such returns or pursuant to any assessment received by the Borrower or any Subsidiary,
except for (i) any taxes or assessments, the amount of which is not individually or in the
aggregate material or (ii) any taxes or assessments being contested in good faith. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Borrower, adequate.



     Section 4.09 Subsidiaries.



     As of the Closing Date, each of the Borrower’s Subsidiaries is a corporation, limited
liability company or other legal Person duly incorporated or formed, validly existing and in good
standing under the laws of its jurisdiction of incorporation or formation, and has all corporate,
limited liability company or organizational, as the case may be, powers and all governmental
licenses, authorizations, consents and approvals required to carry, on its business as now
conducted, except where failure to do so could not reasonably be expected to have a material
adverse effect on the business, financial position or results of operations of the Borrower and its
Consolidated Subsidiaries, considered as a whole. As of the Closing Date, each Subsidiary
Guarantor is a Wholly-Owned Subsidiary of the Borrower.



     Section 4.10 Not an Investment Company; Federal Reserve Regulations.



     (a) Neither the Borrower nor any Subsidiary Guarantor is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.



     (b) Immediately before and after giving effect to each Credit Extension, Margin Stock (within
the meaning of Regulation U) will constitute less than 25% of the Borrower’s assets as determined
in accordance with Regulation U.



     Section 4.11 Full Disclosure.



     (a) All information heretofore furnished by the Borrower to the Agent or any Bank for purposes
of or in connection with this Agreement or any transaction contemplated hereby is, taken as a
whole, and all such information hereafter furnished by the Borrower to the Agent or any Bank will
be, taken as a whole, true and accurate in all material respects on the date as of
which such information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts (which shall be deemed to include facts contained in the Borrower’s
publicly available filings with the Securities Exchange Commission) which materially and adversely
affect or could reasonably be expected to materially and adversely affect the ability of the
Borrower to perform its obligations under this Agreement.



     (b) As of the Closing Date, the Borrower has disclosed to the Agent in writing any and all
facts (which shall be deemed to include facts contained in the Borrower’s publicly available
filings with the Securities Exchange Commission) which materially and adversely affect or could
reasonably be expected to materially and adversely affect the business, operations or financial
condition of the Borrower and its Consolidated Subsidiaries, taken as a whole.



40









 





ARTICLE 5

COVENANTS




     The Borrower agrees that, so long as any Bank has any Commitment or any Loan or LC Liability
remains outstanding, which in the case of any LC Liability has not been fully cash collateralized
(or supported by other credit enhancement) in form and substance satisfactory to the Agent and each
LC Issuing Bank:



     Section 5.01 Information.



     The Borrower will deliver to the Agent:




     (a) as soon as available and in any event within 120 days after the end of each fiscal
year of the Borrower, the audited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such fiscal year and the related audited
statements of consolidated income, consolidated cash flows and consolidated shareholders’
equity for such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on in a manner acceptable to the Securities and
Exchange Commission by KPMG LLP or other independent public accountants of nationally
recognized standing;




     (b) as soon as available and in any event within 45 days after the end of each of the
first three quarters of each fiscal year of the Borrower, the condensed consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the end of such quarter, the
related condensed statement of income for such quarter and the related condensed statements
of income and consolidated cash flows for the portion of the Borrower’s fiscal year ended at
the end of such quarter, setting forth in the case of such statements of consolidated income
and consolidated cash flows in comparative form the figures for the corresponding periods of
the Borrower’s previous fiscal year, all certified (subject to normal year-end adjustments
and the absence of footnotes) as to fairness of presentation in all material respects by the
chief financial officer or the chief accounting officer of the Borrower;




     (c) simultaneously with the delivery of each set of financial statements referred to in
clauses (a) and (b) above, a certificate of the chief financial officer or the chief
accounting officer of the Borrower (i) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the requirements of
Sections 5.07, 5.08, 5.09 and 5.12 on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the Borrower is taking or proposes to
take with respect thereto;




     (d) simultaneously with the delivery of each set of financial statements referred to in
clause (a) above, a statement of the firm of independent public accountants (to the extent
available from such firm) which reported on such statements as to whether



41









 






anything has come
to their attention to cause them to believe that any Default existed on the date of such
statements and;




     (e) within five Domestic Business Days after any officer of the Borrower obtains
knowledge of any Default, if such Default is then continuing, a certificate of the chief
financial officer or the chief accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or proposes to take with respect
thereto;




     (f) promptly upon the mailing thereof to the shareholders of the Borrower generally,
copies of all financial statements, reports and proxy statements so mailed;




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




     (h) promptly if and when any member of the ERISA Group (i) gives or is required to give
notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA or notice that any Multiemployer Plan is in
reorganization, is insolvent or has been terminated, which could, when aggregated with any
liability incurred by any member of the ERISA Group as a result of any other such withdrawal
liability, reorganization, insolvency or termination, give rise to aggregate liabilities of
the ERISA Group in excess of $75,000,000, a copy of such notice; (iii) receives notice from
the PBGC under Title IV of ERISA of an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to administer any
Plan, a copy of such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from any Plan
pursuant to Section 4063 or ERISA, which could, when aggregated with any liability
incurred by any member of the ERISA Group as a result of any other such withdrawal, give
rise to aggregate liabilities of the ERISA Group in excess of $75,000,000, a copy of such
notice; or (vii) fails to make any payment or contribution to any Plan or Multiemployer Plan
or in respect of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted in the imposition of a Lien or the posting of a bond or other
security valued in an amount when aggregated with the value of any other such Lien, bond or
security imposed on any member of the ERISA Group in excess of $75,000,000, a certificate of
the chief financial officer or the chief accounting officer of the Borrower setting forth
details as to such occurrence and action, if any, which the Borrower or applicable member of
the ERISA Group is required or proposes to take;



42









 






     (i) from time to time such additional information regarding the financial position or
business of the Borrower and its Subsidiaries as the Agent, at the request of any Bank, may
reasonably request; and




     (j) promptly such other information with documentation required by bank regulatory
authorities under applicable “know your customer” and anti-money laundering rules and
regulations (including, without limitation, the Patriot Act), as from time to time may be
reasonably requested by the Agent or any Bank.



     Section 5.02 Payment of Obligations.



     The Borrower will pay and discharge, and will cause each Subsidiary to pay and discharge, at
or before maturity, all their respective obligations and liabilities, including, without
limitation, tax liabilities, except where (i) the same are contested in good faith by appropriate
proceedings or (ii) such non-payment could not reasonably be expected to have a material adverse
affect on the business, operations or financial condition of the Borrower and its Consolidated
Subsidiaries, taken as a whole, and will maintain, and will cause each Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate reserves for the accrual of
any of the same.



     Section 5.03 Maintenance of Property; Insurance.



     (a) The Borrower will keep, and will cause each Subsidiary to keep, all property useful and
necessary in its business in good working order and condition (ordinary, wear and tear and
unexpected accidents or catastrophes excepted), except to the extent the non-maintenance of which
could not reasonably be expected to have a material adverse affect on the business, operations or
financial condition of the Borrower and its Consolidated Subsidiaries, taken as a whole.



     (b) The Borrower will maintain, and will cause each Subsidiary to maintain, with financially
sound and reputable insurers, insurance against liabilities to third parties, casualties affecting
property used in its business and other risks of the kinds customarily insured against by
corporations of established reputation engaged in the same or similar business and similarly
situated, of such types and in such amounts as are customarily carried under similar
circumstances by such other corporations; provided that, in lieu of any such
insurance, the Borrower or any such Subsidiary may maintain a system or systems of self-insurance
and reinsurance which will accord with sound practices of similarly situated corporations
maintaining such systems and with respect to which the Borrower or such Subsidiary will maintain
adequate insurance reserves, all in accordance with generally accepted accounting principles and in
accordance with sound insurance principles or practice.



     Section 5.04 Conduct of Business and Maintenance of Existence.



     The Borrower will continue, and will cause each Subsidiary to continue, to engage in business
of the same general type as now conducted by the Borrower and its Subsidiaries or reasonable
extensions thereof, and will preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect their respective corporate or
limited liability company existence and their respective rights, privileges and



43









 





franchises
necessary or desirable in the normal conduct of business; provided that nothing in this
Section 5.04 shall prohibit (i) any merger or consolidation permitted by Section 5.10 or (ii) the
termination (whether by dissolution, liquidation or wind-up) of the corporate or limited liability
company existence of any Subsidiary if the Borrower in good faith determines that such termination
is in the best interest of the Borrower and is not materially disadvantageous to the Banks.




     Section 5.05 Compliance with Laws.



     The Borrower will comply, and will cause each Subsidiary to comply, in all respects with all
applicable laws, ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and regulations
thereunder), except where (i) the necessity of compliance therewith is contested in good faith by
appropriate proceedings or (ii) failures to comply therewith could not, in the aggregate,
reasonably be expected to have a material adverse effect on the business, consolidated financial
position or consolidated results of operations of the Borrower and its Consolidated Subsidiaries,
taken as a whole.



     Section 5.06 Inspection of Property, Books and Records.



     The Borrower will keep, and will cause each Subsidiary to keep, proper books of record and
account in which full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities. The Borrower will permit, and will cause any Significant
Subsidiary to permit representatives of any Bank, at such Bank’s expense, to visit and inspect any
of their respective properties to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with their respective
officers, employees and independent accountants, in each case to the extent reasonably requested by
such Bank to enable it to evaluate the credit of the Borrower and such Significant Subsidiary,
confirm the Borrower’s compliance with the provisions of the Financing Documents, exercise and
enforce such Bank’s rights under the Financing Documents or otherwise make decisions relating
thereto, but subject to any limitations imposed by law or by confidentiality agreements binding on
the Borrower or the relevant Significant Subsidiary and excluding materials subject to
attorney-client privilege or attorney work product. Such visits,
inspections, examinations and discussions shall be conducted at such reasonable times and as
often as the relevant Bank or Banks may reasonably request and the Borrower shall be entitled to
participate in or observe all such visits, inspections, examinations and discussions.



     Section 5.07 Debt.



     Total Debt of all Subsidiaries then outstanding will at no time exceed $75,000,000;
provided that such total Debt shall not include:




     (i) Debt of a Subsidiary owing to the Borrower;




     (ii) Debt of a Subsidiary owing to another Subsidiary (except, in the case of Debt held
by a Subsidiary that is not wholly owned, directly or indirectly, by the Borrower, the
portion of such Debt allocable, on a pro rata basis, to the minority interest);



44









 






     (iii) Guarantees by a Subsidiary of Debt of the Borrower or Debt of another Subsidiary;




     (iv) Debt of a Subsidiary outstanding on December 31, 2004 and listed on Schedule 5.07
or any refinancing of such Debt, provided that the principal amount of refinancing
Debt excluded from total Debt pursuant to this clause (iv) shall not exceed the principal
amount of the Debt refinanced thereby (plus accrued interest owing thereon and the amount of
fees, premiums and expenses charged or otherwise paid in connection with any such
refinancing);




     (v) Debt of a Subsidiary secured by a purchase money Lien or in respect of capitalized
lease obligations permitted by Section 5.09(b) (or any refinancing thereof);
provided that the aggregate outstanding principal amount of all Debt of all
Subsidiaries excluded from total Debt pursuant to this clause (v) shall not at any time
exceed $150,000,000 (plus accrued interest owing thereon and the amount of fees, premiums
and expenses charged or otherwise paid in connection with any such refinancing);




     (vi) Debt of a Subsidiary existing at the time of acquisition of such Subsidiary by the
Borrower or another Subsidiary and not created in contemplation thereof (and any refinancing
thereof); provided that the principal amount of refinancing Debt excluded from total
Debt pursuant to this clause (vi) shall not exceed the principal amount of the Debt
refinanced thereby (plus accrued interest owing thereon and the amount of fees, premiums and
expenses charged or otherwise paid in connection with any such refinancing);




     (vii) Debt of a Subsidiary secured by Liens permitted by Section 5.09(c) or 5.09(d)
(and any refinancing thereof); provided that the principal amount of refinancing
Debt excluded from total Debt pursuant to this clause (vii) shall not exceed the principal
amount of the Debt refinanced thereby (plus accrued interest owing thereon and the amount of
fees, premiums and expenses charged or otherwise paid in connection with any such
refinancing); and




     (viii) Guarantees by a Subsidiary of Debt of an ESOP Trust.



As used herein, the term “ESOP Trust” means a trust created under an employee stock ownership plan
as defined in Section 407(d)(6) of ERISA which benefits employees of a member of the ERISA Group.




     Section 5.08 Leverage Ratio.



     The ratio of (i) Consolidated Debt (minus unrestricted cash and cash equivalents, marketable
securities with a maturity date of 90 days or less (provided that such marketable
securities, if short-term, have an A-1 rating by S&P or P-1 rating by Moody’s or, if long-term, an
A rating or better by S&P or the Moody’s equivalent) and auction rate securities subject to a
“dutch auction” process within 90 days or less (provided that such auction rate securities
have a AAA rating or the Moody’s equivalent), in each case, at the time of acquisition, of the
Borrower



45









 





and its Subsidiaries, taken as a whole, in excess of $100,000,000) to (ii) Consolidated
EBITDA for the immediately preceding four fiscal quarter period in respect of which financial
statements were delivered to the Agent pursuant to Section 5.01, shall at all times be less than or
equal to 3.50 to 1.




     Section 5.09 Negative Pledge.



     Neither the Borrower nor any Subsidiary will create, assume or suffer to exist any Lien on any
asset now owned or hereafter acquired by it, except:




     (a) any Lien existing on any asset of any Person at the time such Person becomes a
Subsidiary, and not created in contemplation of such event at the request of the Borrower or
any of its Subsidiaries or for the benefit of any of their respective creditors (other than
creditors of such Person);




     (b) (i) any purchase money Lien on any property (including accessions thereto and
proceeds thereof) acquired by the Borrower or any Subsidiary or hereafter constructed or
improved by the Borrower or any Subsidiary, to secure or provide for the payment of all or a
part of the purchase price thereof, or any Debt incurred to finance the purchase thereof or
cost of construction or cost of improvement of such property and for which a bona fide firm
commitment in writing was executed prior to, contemporaneously with or within l80 days after
acquisition of such property, or the completion of construction or improvement thereof, as
the case may be, provided that no such Lien shall extend to any other property
(other than proceeds, replacements, accessions and improvements thereof or thereto) of the
Borrower or any Subsidiary and (ii) any Lien relating to capitalized lease obligations of
the Borrower or any Subsidiary;




     (c) any Lien on any asset of any Person existing at the time such Person is merged or
consolidated with or into the Borrower or a Subsidiary and not created in contemplation of
such event at the request of the Borrower or any of its Subsidiaries or for the benefit of
any of their respective creditors (other than creditors of such Person);




     (d) any Lien existing on any asset prior to the acquisition thereof by the Borrower or
a Subsidiary and not created in contemplation of such acquisition at the request of the
Borrower or any of its Subsidiaries or for the benefit of any of their respective creditors;




     (e) any Lien arising out of the refinancing, extension, renewal or refunding of any
Debt secured by any Lien permitted by any of the foregoing clauses of this Section,
provided that such Debt is not increased (except accrued interest owing thereon and
in the amount of fees, premiums and expenses charged or otherwise paid in connection with
such transaction) and is not secured by any additional assets;




     (f) any Lien on (i) the common stock or other ownership interest of any Subsidiary
Guarantor, but only if after giving effect to such Lien or other ownership interest the
Borrower would own, directly or indirectly, at least 80% of the common stock



46









 






of such
Subsidiary Guarantor free and clear of Liens or (ii) the common stock or other ownership
interest of any other Subsidiary;




     (g) Liens for taxes, assessments or other governmental charges which are not yet due
and payable or that are being contested in good faith;




     (h) (i) Liens incidental to the conduct of business or the ownership of properties and
assets (including landlords’, carriers’, warehousemen’s, mechanics’, materialmen’s and other
similar Liens), (ii) Liens directly or indirectly securing (1) any obligation under an
indemnity, performance guarantee or similar undertaking or guarantee thereof issued by or on
behalf of the Borrower or its Subsidiaries, (2) any obligation to reimburse or indemnify any
other Person in connection with a performance guaranty or similar undertaking or guarantee
thereof issued by or on behalf of the Borrower or its Subsidiaries, which indemnity,
guarantee or undertaking in either case (1) or (2) above is issued to secure or support any
contract or other obligation (other than a contract or other obligation evidencing Debt of
the Borrower and its Subsidiaries) entered into by or otherwise binding upon the Borrower or
any of its Subsidiaries in the ordinary course of business, (iii) Liens directly or
indirectly created to secure the performance of bids, tenders, leases, or trade contracts,
or to secure statutory obligations (including obligations under workers compensation,
unemployment insurance and other social security legislation), surety or appeal bonds or
nonqualified benefit plans, (iv) Liens of customs or revenue authorities in the ordinary
course of business, or (v) Liens with respect to cash or cash equivalents securing defeased
(legal or covenant) liabilities;




     (i) Liens resulting from judgments not constituting an Event of Default;




     (j) Liens securing debt of a Subsidiary owed to the Borrower or to a Subsidiary
Guarantor;




     (k) Liens in existence as of the Closing Date and listed on Schedule 5.09;




     (m) leases, subleases, survey exceptions, easements, rights-of-way, restrictions and
other similar charges or encumbrances incidental to the ownership of property or assets or
the ordinary conduct of the Borrower or any Subsidiary’s business;




     (n) Liens on property of the Borrower or any Subsidiary (except Liens on the capital
stock or debt of the Borrower or any Subsidiary Guarantor) in favor of the United States of
America or any state thereof, or any agency or political subdivision of either, or in favor
of any other country or agency or political subdivision thereof, in each case (i) to secure
payments (other than Debt) pursuant to contract or statute in the ordinary course of
business or (ii) to secure Debt created, incurred or guaranteed for the purpose of financing
all or any part of the purchase price or the cost of construction or improvement of the
property subject to such Liens, including Liens incurred in connection with pollution
control, industrial revenue bond or other similar financings;



47









 






     (o) other Liens arising in the ordinary course of its business which (i) do not secure
Debt, (ii) do not secure any obligation in an amount exceeding $50,000,000 and (iii) do not
in the aggregate materially detract from the value of the assets of the Borrower and its
Subsidiaries or materially impair the use thereof in the operation of their business, taken
as a whole;




     (p) any Lien on accounts receivable if, immediately after such Lien arises, the
aggregate uncollected balance of all accounts receivable sold or subjected to Liens by the
Borrower and its Subsidiaries would not exceed 15% of the consolidated accounts receivable
of the Borrower and its Subsidiaries as of the end of its then most recently ended fiscal
quarter (excluding, for purposes of this clause (p) accounts receivable charged off in
accordance with the charge-off policies applicable to the unsold accounts receivable of the
Borrower and its Subsidiaries) for which financial statements were delivered to the Agent
pursuant to Section 5.01; and




     (q) Liens not otherwise permitted by the foregoing clauses of this Section securing
Debt or other obligations if, immediately after giving effect to the incurrence thereof, the
Debt or other obligations secured by such Liens would not exceed 15% of Consolidated Net
Tangible Assets as of the end of the immediately preceding fiscal quarter of the Borrower
for which financial statements were delivered to the Agent pursuant to Section 5.01.



     Section 5.10 Consolidations, Mergers and Sales of Assets.



     The Borrower will not, and will not permit any Subsidiary to, consolidate or merge with, or
sell, lease or otherwise transfer any of its assets to, any Person or dissolve, liquidate or wind
up its affairs (other than in accordance with Section 5.04(ii)), except that nothing in this
Section 5.10 shall prohibit:




     (a) the merger or consolidation of the Borrower with or into another Person if the
entity surviving such consolidation or merger is the Borrower,




     (b) the merger or consolidation of a Subsidiary Guarantor with or into another Person
if the entity surviving such consolidation or merger is or becomes a Subsidiary Guarantor in
accordance with Article 3 of the Subsidiary Guaranty Agreement,




     (c) the merger or consolidation of a Subsidiary (other than a Subsidiary Guarantor)
with or into another Person if the entity surviving such consolidation or merger is the
Borrower or a Subsidiary, provided that if such other Person is the Borrower or a
Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor is the surviving entity,




     (d) any sale, lease or other transfer of any asset (including, in the case of clause
(ii) pursuant to a merger or consolidation) either (i) in the ordinary course of business or
(ii) for fair value if after giving effect thereto, the aggregate consideration received for
all of their assets sold, leased or otherwise transferred under this clause (ii) during any
fiscal year of the Borrower does not exceed $100,000,000;



48









 





provided that, in the case of (x) any such merger or consolidation or (y) any such sale,
lease or other transfer of any asset not in the ordinary course of business, no Default shall have
occurred and be continuing after giving effect thereto.




     Section 5.11 Use of Proceeds.



     Each Credit Extension will be used by the Borrower and its Subsidiaries for general corporate
purposes, including, without limitation, acquisitions by the Borrower or any of its Subsidiaries.
No Loan or Letter of Credit will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning of
Regulation U.



     Section 5.12 Fixed Charge Coverage.



     The ratio of Consolidated EBITDAR to Consolidated Fixed Charges shall be, as of the last day
of each fiscal quarter (beginning with the fiscal quarter ended March 31, 2005), greater than or
equal to 1.875 to 1 for the most recently ended four fiscal quarters for which financial statements
were delivered to the Agent pursuant to Section 5.01.



     Section 5.13 Transactions with Third Party Affiliates.



     The Borrower will not, and will not permit any Subsidiary to, directly or indirectly, pay any
funds to or for the account of, make any investment (whether by acquisition of stock or
indebtedness, by loan, advance, transfer of property, guarantee or other agreement to pay, purchase
or service, directly or indirectly, any Debt, or otherwise) in, lease, sell, transfer or otherwise
dispose of any assets, tangible or intangible, to, or participate in, or effect any transaction in
connection with any joint enterprise or other joint arrangement with, any Third Party Affiliate;
provided that nothing in this Section 5.13 shall prohibit:




     (a) the Borrower from declaring or paying any lawful dividend so long as, immediately
after giving effect thereto, no Default would occur or be continuing;




     (b) the Borrower or any Subsidiary from making sales to or purchases from any Third
Party Affiliate and, in connection therewith, extending credit or making payments, or from
making payments for services rendered by any Third Party Affiliate, if such sales or
purchases are made or such services are rendered in the ordinary course of business and on a
basis no less advantageous to the Borrower or such Subsidiary than would be the case in an
arm’s-length transaction;




     (c) the Borrower or any Subsidiary from making payments of principal, interest and
premium on any Debt of the Borrower or such Subsidiary held by a Third Party Affiliate if
the terms of such Debt are established on a basis no less advantageous to the Borrower or
such Subsidiary than would be the case in an arm’s-length transaction; or




     (d) the Borrower or any Subsidiary from participating in or effecting any transaction
in connection with any joint enterprise or other joint arrangement with any



49









 






Third Party
Affiliate if the Borrower or such Subsidiary participates in the ordinary course of its
business and on a basis no less advantageous than the basis on which such Third Party
Affiliate participates.



ARTICLE 6

DEFAULTS




     Section 6.01 Events of Default.



     If one or more of the following events (“Events of Default”) shall have occurred and be
continuing:




     (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due, or shall fail to pay within three Domestic Business Days of the due
date thereof any interest, fees or other amount payable hereunder;




     (b) the Borrower shall fail to observe or perform any covenant contained in Sections
5.07 to 5.12, inclusive, or in Section 3.01 of the Subsidiary Guaranty Agreement;




     (c) the Borrower shall fail to observe or perform any covenant or agreement contained
in any (i) Financing Document (other than those covered by clause (a) or (b) above) for 30
days after written notice thereof has been given to the Borrower by the Agent at the request
of any Bank, or (ii) Section 5.01(e) for 30 days;




     (d) any representation, warranty, certification or statement made by the Borrower or
any Subsidiary Guarantor in any Financing Document or any amendment thereof or in any
certificate, financial statement or other document delivered pursuant to any Financing
Document shall prove to have been incorrect in any material respect when made (or deemed
made);




     (e) the Borrower or any Subsidiary shall fail to make any payment in respect of any
Material Debt within three Domestic Business Days after such payment is due or, if longer,
within any grace period otherwise applicable to such payment;




     (f) any event or condition shall occur which results in the acceleration of the
maturity of Material Debt or enables the holders of Material Debt or any Person acting on
their behalf to accelerate the maturity thereof;




     (g) the Borrower, any Significant Subsidiary, or group of Subsidiaries of the Borrower
that, taken together, would constitute a Significant Subsidiary, shall commence a voluntary
case or other proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a



50









 






general assignment for the
benefit of creditors, or shall fail generally to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing;




     (h) an involuntary case or other proceeding shall be commenced against the Borrower,
any Significant Subsidiary, or group of Subsidiaries of the Borrower that, taken together,
would constitute a Significant Subsidiary, seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered against the Borrower, any Significant
Subsidiary, or group of Subsidiaries of the Borrower that, taken together, would constitute
a Significant Subsidiary, under the federal bankruptcy laws as now or hereafter in effect;




     (i) any member of the ERISA Group shall fail to pay when due an amount or amounts
aggregating in excess of $75,000,000 which it shall have become liable to pay under Title IV
of ERISA; or notice of intent to terminate a Material Plan shall be filed under Title IV of
ERISA by any member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to
cause a trustee to be appointed to administer any Material Plan; or a condition shall exist
by reason of which the PBGC would be entitled to obtain a decree adjudication that any
Material Plan must be terminated; or there shall occur a complete or partial withdrawal
from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one
or more Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $75,000,000;




     (j) a final judgment or order for the payment of money in excess of $75,000,000 (to the
extent not covered by insurance, net of any applicable deductible) shall be entered or filed
against the Borrower or any Subsidiary and such judgment or order shall continue
unsatisfied, unvacated and unstayed for a period of 60 days;




     (k) any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of 30% or more of the outstanding shares of common stock of the Borrower or
Continuing Directors shall cease to constitute a majority of the Borrower’s board of
directors;




     (l) the Borrower or any Subsidiary Guarantor shall take any action that causes the
guarantee by any Subsidiary Guarantor set forth in the Subsidiary Guaranty Agreement to be
revoked or invalidated, or to cease to be in full force and effect (other than pursuant to
Section 4.03 of the Subsidiary Guaranty Agreement), or the Borrower or any Subsidiary
Guarantor (or any Person acting on behalf of the Borrower or any



51









 






Subsidiary Guarantor) shall
deny or disaffirm any of the obligations of any Subsidiary Guarantor set forth in the
Subsidiary Guaranty Agreement (except to the extent such obligations have ceased to be in
effect pursuant to Section 4.03 of the Subsidiary Guaranty Agreement);



then, and in every such event, the Agent shall (i) if requested by the Required Banks, by notice to
the Borrower terminate the Commitments and they shall thereupon terminate and (ii) if requested by
the Required Banks by notice to the Borrower declare the unpaid principal amount of the Loans
(together with accrued interest thereon) to be, and the unpaid principal amount of the Loans shall
thereupon become, immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower; provided that in the case of
any of the Events of Default specified in clause (g) or (h) above with respect to the Borrower,
without any notice to any Obligor or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the unpaid principal amount of the Loans (together with accrued interest
thereon) shall become immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower.




     Section 6.02 Notice of Default.



     The Agent shall give notice to the Borrower under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.



ARTICLE 7

THE AGENT AND THE CO-AGENTS




     Section 7.01 Appointment and Authorization.



     Each Bank irrevocably appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers and perform such duties under the Financing Documents
as are expressly delegated to the Agent by the terms thereof, together with all such powers as
are reasonably incidental thereto.



     Section 7.02 Agent and Affiliates.



     BNY shall have the same rights and powers under the Financing Documents as any other Bank and
may exercise or refrain from exercising the same as though it were not the Agent. BNY and its
affiliates may accept deposits from, lend money to, and generally engage in any kind of business
with the Borrower or any Subsidiary, or affiliate of the Borrower, as if it were not the Agent
hereunder and without notice to or consent of the Banks. The Banks acknowledge that, pursuant to
such activities, the Agent or its affiliates may receive information regarding any Obligor or its
Affiliates (including information that may be subject to confidentiality obligations in favor of
such Obligor or such Affiliate) and acknowledge that the Agent and its affiliates shall be under no
obligation to provide such information to them.



52









 





     Section 7.03 Action by Agent.



     The obligations of the Agent under the Financing Documents are only those expressly set forth
therein. Notwithstanding any provision to the contrary contained elsewhere herein or in any other
Financing Document, the Agent shall not have any duties or responsibilities, except those expressly
set forth herein, nor shall the Agent have or be deemed to have any fiduciary relationship with any
Bank or participant, and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Financing Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing sentence, the use of the term
“agent” herein and in the other Financing Documents with reference to the Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under agency doctrine of
any applicable law. Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between independent contracting
parties.



     Section 7.04 Consultation with Experts; Delegation of Duties.



     The Agent may consult with legal counsel (who may be counsel for an Obligor), independent
public accountants and other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants
or experts. The Agent may execute any of its duties under this Agreement or any other Financing
Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel and other consultants or experts concerning all matters pertaining to such duties. The
Agent shall not be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct by the Agent.



     Section 7.05 Liability of Agent.



     Neither the Agent nor any of its affiliates nor any of their respective directors, officers,
agents or employees shall be liable for any action taken or not taken by it in connection herewith
(i) with the consent or at the request of the Required Banks or (ii) in the absence of its own
gross negligence or willful misconduct. Neither the Agent nor any of its affiliates nor any of
their respective directors, officers, agents or employees shall be responsible for or have any duty
to ascertain, inquire into or verify (i) any statement, warranty or representation made in
connection with the Financing Documents or any borrowing hereunder; (ii) the performance or
observance of any of the covenants or agreements of the Borrower; (iii) the satisfaction of any
condition specified in Article 3, except receipt of items required to be delivered to the Agent; or
(iv) the validity, effectiveness or genuineness of the Financing Documents or any other instrument
or writing furnished in connection therewith.



     Section 7.06 Reliance by Agent.



     (a) The Agent shall be entitled to rely, and shall not incur any liability by acting in
reliance, upon any notice, consent, certificate, statement, or other writing (which may be a bank
wire, facsimile transmission or similar writing) believed by it to be genuine or to be signed by
the proper party or parties. The Agent shall be fully justified in failing or refusing to take any



53









 





action under any Financing Document unless it shall first receive such advice or concurrence of the
Required Banks as it deems appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.




     (b) For purposes of determining compliance with the conditions specified in Section 3.01, each
Bank 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 either sent by the Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to a Bank.



     Section 7.07 Notice of Default.



     The Agent shall be deemed not to have knowledge or notice of the occurrence of any Default,
except with respect to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received written notice from
a Bank or the Borrower referring to this Agreement, describing such Default and stating that such
notice is a “notice of default.” The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default as may be directed by the
Required Banks in accordance with Article 6; provided, however, that unless and until the
Agent has received any such direction, the Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it shall deem advisable
or in the best interest of the Banks.



     Section 7.08 Indemnification.



     Each Bank shall indemnify the Agent, its affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the Borrower), against any Indemnified
Liabilities (except for any such Indemnified Liabilities that result from such indemnitees’ gross
negligence or willful misconduct, provided that no action taken in accordance with the
direction of the Required Banks shall be deemed to constitute gross negligence or willful
misconduct for purposes of this Section), in each case ratably in accordance with its Percentage
(or in the event that the aggregate Commitments have expired or otherwise terminated, in accordance with its
pro rata share of the aggregate Outstanding Total Credit Exposure of all Banks).



     Section 7.09 Credit Decision.



     Each Bank acknowledges that it has, independently and without reliance upon the Agent, its
affiliates or any other Bank, 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 Bank
acknowledges that neither the Agent, its affiliates nor any other Bank has made any representation
or warranty to it, and that no act by the Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of any Obligor or any affiliate thereof,
shall be deemed to constitute any representation or warranty by the Agent or its affiliates to any
Bank as to any matter, including whether the Agent or its affiliates have disclosed material
information in their possession. Each Bank also acknowledges that it will, independently and
without reliance upon the Agent, its affiliates or any other Bank, and based on



54









 





such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking any action under the Financing Documents. Except for notices, reports and
other documents expressly required to be furnished to the Banks by the Agent herein, the Agent
shall not have any duty or responsibility to provide any Bank with any credit or other information
concerning the business, prospects, operations, property, financial and other condition or
creditworthiness of any of the Obligors or any of their respective Affiliates which may come into
the possession of the Agent or its affiliates.




     Section 7.10 Successor Agent.



     The Agent may resign at any time by giving notice thereof to the Banks and the Borrower. Upon
any such resignation, the Required Banks shall have the right, with the prior consent (such consent
not to be unreasonably withheld) of the Borrower provided that no Default has occurred and
is continuing, to appoint a successor Agent. If no successor Agent shall have been so appointed by
the Required Banks (with the Borrower’s consent, to the extent required), and shall have accepted
such appointment, within 30 days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a commercial
bank organized or licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $1,000,000,000. Upon the acceptance of its
appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any retiring Agent’s
resignation hereunder as Agent, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent.



     Section 7.11 Additional Agents.



     No Bank identified as a “syndication agent”, “co-documentation agent”, or “co-lead arranger”
on the facing page hereof, on the signature pages hereto or otherwise herein shall have any right,
power, obligation, liability, responsibility or duty of any kind under the Financing


 Documents (except those applicable to it in its capacity as a Bank) or any fiduciary
relationship with any other Bank.



ARTICLE 8

CHANGE IN CIRCUMSTANCES




     Section 8.01 Basis for Determining Interest Rate Inadequate or Unfair.



     If on or prior to the first day of any Interest Period for any Euro-Dollar Borrowing or Money
Market LIBOR Loan:



               (a) the Agent determines that deposits in Dollars (in the applicable amounts) are not being
offered in the relevant market for such Interest Period, or



55









 





               (b) Banks having 50% or more of either the aggregate Commitments or the aggregate principal
amount of the affected Loans advise the Agent that the Adjusted London Interbank Offered Rate, as
determined by the Agent, will not adequately and fairly reflect the cost to such Banks of funding
their Euro-Dollar Loans or Money Market LIBOR Loans for such Interest Period,



the Agent shall forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist,
(i) the obligations of the Banks to make Euro-Dollar Loans or Money Market LIBOR Loans or to
continue or convert outstanding Loans as or into Euro-Dollar Loans shall be suspended and (ii) each
outstanding Euro-Dollar Loan shall be converted into a Base Rate Loan on the last day of the then
current Interest Period applicable thereto. Unless the Borrower notifies the Agent at least two
Domestic Business Days before the date of any Euro-Dollar Borrowing or Money Market LIBOR Borrowing
for which a Notice of Borrowing has previously been given that it elects not to borrow on such
date, (i) such Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such Borrowing
is a Money Market LIBOR Borrowing, the Money Market LIBOR Loans comprising such Borrowing shall
bear interest on the unpaid principal amount thereof for each day from and including the first day
to but excluding the last day of the Interest Period applicable thereto at the Base Rate for such
day.




     Section 8.02 Illegality.



     If after the date hereof, the adoption of any applicable law, rule or regulation, or any
change in any applicable law, rule or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Bank (or its Applicable
Lending Office) with any request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or impossible for any Bank (or
its Applicable Lending Office) to make or fund any Euro-Dollar Loan or Money Market LIBOR Loan, or
maintain its Euro-Dollar Loans or Money Market LIBOR Loans (excluding Money Market LIBOR Loans
bearing interest at the Base Rate pursuant to Section 8.01(a)) and such Bank shall so notify the
Agent, the Agent shall forthwith give notice thereof to the other Banks and the Borrower, whereupon until such Bank notifies
the Borrower and the Agent that the circumstances giving rise to such suspension no longer exist,
the obligation of such Bank to make or fund Euro-Dollar Loans, to continue or convert outstanding
Loans as or into Euro-Dollar Loans or to continue such outstanding Money Market LIBOR Loans, shall
be suspended. Before giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Applicable Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank.
If such notice is given, each Euro-Dollar Loan and each Money Market LIBOR Loan of such Bank then
outstanding shall be converted to a Base Rate Loan either (a) on the last day of the then current
Interest Period applicable to such Euro-Dollar Loan if such Bank may lawfully continue to maintain
and fund such Loan as a Euro-Dollar Loan or Money Market LIBOR Loan to such day or (b) immediately
if such Bank shall determine that it may not lawfully continue to maintain and fund such Loan as a
Euro-Dollar Loan or as a Money Market LIBOR Loan to such day.




56










 






     Section 8.03 Increased Cost and Reduced Return.



     (a) If after (x) the date hereof, in the case of any Committed Loan, Swingline Loan, Letter of
Credit, Reimbursement Obligation or any obligation to make Committed Loans or to issue Letters of
Credit or (y) the date of the related Money Market Quote, in the case of any Money Market Loan, the
adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or
regulation, or any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency, charged with the interpretation or administration
thereof, or compliance by any Bank (or its Applicable Lending Office) with any request or directive
(whether or not having the force of law) of any such authority, central bank or comparable agency
shall impose, modify or deem applicable any reserve (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with
respect to any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar Reserve
Percentage), special deposit, insurance assessment or similar requirement against assets of,
deposits with or for the account of, or credit extended by, any Bank (or its Applicable Lending
Office) or shall impose on any Bank (or its Applicable Lending Office) or on the London interbank
market any other condition affecting its Fixed Rate Loans, its Note, its Reimbursement Obligations
or its obligation to make Fixed Rate Loans or issue Letters of Credit and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending Office) of making or
maintaining any Fixed Rate Loan or issuing any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Bank (or its Applicable Lending Office) under this Agreement or
under its Note, if any, with respect thereto, by an amount deemed by such Bank to be material,
then, within 30 days after demand by such Bank (with a copy to the Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank for such increased cost
or reduction.



     (b) If any Bank shall have determined that, after the date hereof, the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change in any such law rule
or regulation, or any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or its Parent) as a consequence of such Bank’s
obligations hereunder to a level below that which such Bank (or its Parent) could have achieved but
for such adoption, change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to
time, within 30 days after demand by such Bank (with a copy to the Agent), the Borrower shall pay
to such Bank such additional amount or amounts as will compensate such Bank (or its Parent) for
such reduction.



     (c) Each Bank will use its best efforts promptly to notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such compensation and will not,
in the judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error.



57









 





In determining such amount, such Bank may use any reasonable averaging and attribution
methods. Notwithstanding the foregoing, the Borrower shall not be obligated to pay any amounts
contemplated by this Section 8.03 which were incurred by such Bank more than 180 days prior to the
date of such demand, such 180 day period to be extended to the extent that the event entitling such
Bank to compensation pursuant to this Section is retroactive.



     Section 8.04 Taxes.



     (a) Any and all payments by the Borrower to or for the account of any Bank or the Agent
hereunder or under any Note shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and the Agent, taxes imposed
on its income, and franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank or the Agent (as the case may be) is organized or any political subdivision thereof and, in
the case of each Bank, taxes imposed on its income, and franchise or similar taxes imposed on it,
by the jurisdiction of such Bank’s Applicable Lending Office or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as “Taxes”). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any Note to any Bank or
the Agent, (i) the sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under this Section 8.04)
such Bank or the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority, or other authority
in accordance with applicable law and (iv) the Borrower shall furnish to the Agent, at its address
referred to in Section 9.01, the original or a certified copy of a receipt evidencing payment
thereof.



     (b) In addition, the Borrower agrees to pay any present or future stamp or documentary taxes
and any other excise or property taxes, or charges or similar levies which arise from any payment
made hereunder or under any Note or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as “Other Taxes”).



     (c) The Borrower agrees to indemnify each Bank and the Agent for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 8.04) paid by such Bank or the Agent (as the
case may be) and any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto. This indemnification shall be made within 30 days from the date such Bank or
the Agent (as the case may be) makes demand therefor.



     (d) Each Bank organized under the laws of a jurisdiction outside the United States (a “Foreign
Bank”), on or prior to the date of its execution and delivery of this Agreement in the case of each
Bank listed on the signature pages hereof and on or prior to the date on which it becomes a Bank in
the case of each other Bank, and from time to time thereafter if requested in writing by the
Borrower (but only so long as such Bank remains lawfully able to do so), shall provide the Borrower
with (i) Internal Revenue Service Form W-8 BEN or W-8 ECI, as



58









 





appropriate, or any successor form prescribed by the Internal Revenue Service, certifying that
such Bank is entitled to benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct of a trade or
business in the United States, (ii) Internal Revenue Service Form W-8 or W-9, as appropriate, or
any successor form prescribed by the Internal Revenue Service, and/or (iii) any other form or
certificate required by any taxing authority (including any certificate required by Sections 871(h)
and 881(c) of the Internal Revenue Code, including, without limitation, in the case of Section
881(c) of the Internal Revenue Code, a certificate that such Bank (i) is not a “bank” under
Section 881(c)(3)(A) of the Internal Revenue Code, (ii) is not a 10-percent shareholder within the
meaning of Section 881(c)(3)(B) of the Internal Revenue Code and (iii) is not a controlled foreign
corporation receiving interest from a related person within the meaning of Section 881(c)(3)(C) of
the Internal Revenue Code), certifying that such Bank is entitled to an exemption from tax on
payments pursuant to this Agreement or any of the other Financing Documents. If the form provided
by a Bank at the time such Bank first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from “Taxes” as defined in Section 8.04(a).




     (e) For any period with respect to which a Bank has failed to provide the Borrower with the
appropriate form pursuant to Section 8.04(d) (unless such failure is due to a change in treaty, law
or regulation, or any change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was required to be
provided), such Bank shall not be entitled to indemnification under Section 8.04(a) with respect to
Taxes imposed by the United States; provided that should a Bank, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall take such steps as such Bank shall
reasonably request to assist such Bank to recover such Taxes.



     (f) If the Borrower is required to pay additional amounts to or for the account of any Bank
pursuant to this Section 8.04, then such Bank will change the jurisdiction of its Applicable
Lending Office so as to eliminate or reduce any such additional payment which may thereafter accrue
if such change, in the judgment of such Bank, is not otherwise disadvantageous to such Bank.



     Section 8.05 Base Rate Loans Substituted for Affected Fixed Rate Loans.



     (a) If (i) the obligation of any Bank to make, or continue or convert outstanding Loans as or
into, Euro-Dollar Loans or Money Market LIBOR Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04 with respect to its Euro-Dollar
Loans or Money Market LIBOR Loans and the Borrower shall, by at least five Euro-Dollar Business
Days’ prior notice to such Bank through the Agent, have elected that the provisions of this Section
8.05(a) shall apply to such Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no longer exist, all Loans
which would otherwise be made by such Bank as (or continued as or converted into) Euro-Dollar Loans
or Money Market LIBOR Loans shall be made or continued instead as Base Rate Loans (on which
interest and principal shall be payable contemporaneously with the related Euro-Dollar Loans or
Money Market LIBOR Loans, as the



59









 





case may be, of the other Banks). If such Bank notifies the Borrower that the circumstances
giving rise to such notice no longer exist, the principal amount of each such Base Rate Loan that
was a Euro-Dollar Loan shall be converted into a Euro-Dollar Loan on the first day of the next
succeeding Interest Period applicable to the related Euro-Dollar Loans of the other Banks.




     (b) If (i) any Bank has demanded compensation under Section 8.03 with respect to its
Euro-Dollar Loans or Money Market LIBOR Loans or (ii) the Borrower has become obligated to pay any
Taxes or other amounts to or for the account of any Bank pursuant to Section 8.04, and the Borrower
shall, by at least five Euro-Dollar Business Days’ prior notice to the Banks through the Agent,
have elected that the provisions of this Section 8.05(b) shall apply to all of the Banks, then the
Borrower shall, on the fifth Euro-Dollar Business Day following such notice, prepay in full the
then outstanding principal amount of each outstanding Euro-Dollar Loan and Money Market LIBOR Loan
of each Bank, together with accrued interest thereon.



     Section 8.06 Substitution of Banks.



     If (i) any Bank has demanded compensation under Section 8.03, (ii) the Borrower has become
obligated to pay any Taxes or other amounts to or for the account of any Bank pursuant to Section
8.04 (such Bank, in either clause (i) or (ii), an “Increased Cost Bank”), (iii) any Bank has become
a Defaulting Bank and has failed to cure its default within five days after the Borrower’s request
that it cure such default or (iv) in connection with any proposed amendment, modification,
termination, waiver or consent contemplated by Sections 9.05(ii) to 9.05(vi), inclusive, the
consent of Required Banks shall have been obtained but the consent of one or more of such other
Banks (each a “Non-Consenting Bank”) whose consent is required has not been obtained, in each case,
then, with respect to each such Increased Cost Bank, Defaulting Bank or Non-Consenting Bank (each a
“Selling Bank”), the Borrower shall have the right, with the assistance of the Agent, to seek one
or more banks or other institutions satisfactory to the Borrower and the Agent (collectively, the
“Purchasing Banks”) willing to purchase the Selling Bank’s Loans, its participation interests of
any unpaid Reimbursement Obligations and Swingline Loans and assume the Commitment of the Selling
Bank, all on the terms specified in this Section 8.06. The Selling Bank shall be obligated (and
hereby irrevocably agrees) to sell its Loans and its participation interests in any unpaid
Reimbursement Obligations and Swingline Loans to such Purchasing Bank or Banks (which may include
one or more of the Banks) in accordance with the provisions of Section 9.06(c) within 5 days after
receiving notice from the Borrower requiring it to do so, at an aggregate price equal to the
outstanding principal amount thereof, plus unpaid interest accrued thereon to but excluding the
date of sale. In connection with any such sale, and as a condition thereof, the Borrower shall pay
to the Selling Bank all fees accrued for its account hereunder to but excluding the date of such
sale, plus, if demanded by the Selling Bank at least two Domestic Business Days prior to such sale,
(i) the amount of any indemnity which would be due to the Selling Bank under Section 2.14 if the
Borrower had prepaid the outstanding Fixed Rate Loans of the Selling Bank on the date of such sale
and (ii) any additional compensation, Taxes or other amounts accrued for its account under Section
8.03 or 8.04, as applicable, to but excluding, said date (it being understood that the Selling Bank
shall retain its right to be compensated after the date of such sale for any such accrued amounts
remaining unpaid) and shall pay to the Agent the administrative fee referred to in Section 9.06(c).
Upon such sale, the Purchasing Bank or Banks shall assume the Commitment of the Selling Bank, and
the Selling Bank shall be released from its obligations hereunder to a



60









 





corresponding extent, and, such Purchasing Bank shall be a Bank party to this Agreement, shall
be deemed to be an Assignee hereunder and shall have all the rights and obligations of a Bank with
a Commitment equal to its ratable share of the Commitment of the Selling Bank. Upon the
consummation of any sale pursuant to this Section 8.06, the Selling Bank, the Agent and the
Borrower shall make appropriate arrangements so that, if required, each Purchasing Bank receives a
new Note. In the event such Selling Bank is a Non-Consenting Bank, each Purchasing Bank shall
consent, at the time of such assignment, to each matter in respect of which such Selling Bank was a
Non-Consenting Bank. Upon the prepayment of all amounts owing to any Selling Bank and the
termination of such Selling Bank’s Commitments, if any, such Selling Bank shall no longer
constitute a “Bank” for purposes hereof; provided, any rights of such Selling Bank to
indemnification hereunder shall survive as to such Selling Bank. If the Selling Bank is also an LC
Issuing Bank, its obligation to issue, amend, renew or extend Letters of Credit shall terminate
concurrently with such sale and its status as an LC Issuing Bank (but not its right to
indemnification hereunder) shall terminate when the LC Liabilities relating to all Letters of
Credit issued by it have been reduced to zero or have been fully cash collateralized or supported
by other letters of credit, in each case, in a manner satisfactory to the LC Issuing Bank.




ARTICLE 9

MISCELLANEOUS




     Section 9.01 Notices.



     All notices, requests and other communications (“notices”) to any party hereunder
shall be in writing (including facsimile transmission or similar writing) and shall be given to
such party (a) in the case of the Borrower, at its address or facsimile number set forth on the
signature pages hereof, (b) in the case of the Agent and the Banks, at its address or facsimile
number set forth on Schedule 3 or (c) in the case of any party, at such other address or facsimile
number as such party may hereafter specify for the purpose by notice to the Agent and the Borrower.
Each such notice shall be effective (i) if given by facsimile transmission, when such facsimile is
transmitted to the facsimile transmission number specified in or pursuant to this Section 9.01 and
telephonic confirmation of receipt thereof is received, or (ii) if given by mail or by any other
means, when delivered at the address specified in this Section; provided that notices to
one or more Credit Parties under Article 2 or Article 8 shall not be effective until received.



     Notwithstanding the foregoing, notices to the Banks hereunder may be delivered or furnished by
electronic communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Agent, provided that the foregoing shall not apply to notices to
any Bank, the Swingline Bank or any LC Issuing Bank pursuant to Article 2 if such Bank, the
Swingline Bank or such LC Issuing Bank, as applicable, has notified the Agent that it is incapable
of receiving, or that it is contrary to such bank’s policies to receive, notices under such Article
by electronic communication. The Agent or any Credit Party may, in its discretion, agree to accept
notices to it hereunder by electronic communications pursuant to procedures approved by it,
provided that approval of such procedures may be limited to particular notices. Unless the
Agent otherwise prescribes, (i) notices 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);
provided, however, that if such notice is not sent during the normal business



61









 





hours of the recipient, such notice shall be deemed to have been sent at the opening of
business on the next business day of the recipient, and (ii) notices 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 is
available and identifying the website address therefor.




     Section 9.02 No Waivers.



     No failure or delay by any Credit Party in exercising any right, power or privilege under any
Financing Document shall operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.



     Section 9.03 Expenses; Indemnification.



     (a) The Borrower shall pay (i) all out-of-pocket expenses of the Agent and its affiliates,
including reasonable fees and disbursements of special counsel for the Agent, in connection with
the preparation and administration of the Financing Documents, any waiver or consent thereunder or
any amendment thereof or any Default thereunder or any event or condition reasonably alleged by any
Credit Party to be a possible Default thereunder and (ii) if an Event of Default occurs, all
out-of-pocket expenses incurred by the Agent, its affiliates and each Bank, including reasonable
fees and disbursements of counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.



     (b) The Borrower agrees, in addition to but not in duplication of any other indemnity
otherwise provided herein, to indemnify each Credit Party and its affiliates and the respective
directors, officers, agents and employees thereof (each an “Indemnitee”) and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind,
including, without limitation, the reasonable fees and disbursements of counsel, which may be
incurred by such Indemnitee in connection with any investigative, administrative or judicial
proceeding (whether or not such Indemnitee shall be designated a party thereto) brought or
threatened and relating to or arising out of the Financing Documents or any actual or proposed use
of proceeds of Loans hereunder (all of the foregoing in subsection (a) above and this subsection
(b), collectively, the “Indemnified Liabilities”); provided that no Indemnitee shall have
the right to be indemnified hereunder for such Indemnitee’s own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.



     Section 9.04 Set-Off; Sharing of Set-offs.



     Each Bank agrees that if it shall, by exercising any right of set-off or counterclaim or
otherwise, receive (i) payment of a proportion of the aggregate amount of principal and interest
due with respect to any Loan held by it which is greater than the proportion received by any other
Bank in respect of the aggregate amount of principal and interest due with respect to any Loan held
by such other Bank or (ii) payment of a proportion of its participation in the LC Liabilities or
Swingline Loans which is greater that the proportion received by any other Bank in



62









 





respect of its participation in the LC Liabilities or Swingline Loans, as the case may be, the
Bank receiving such proportionately greater payment shall purchase such participations in the
Loans, the LC Liabilities and the Swingline Loans, as the case may be, held by the other Banks, and
such other adjustments shall be made, as may be required so that all such payments of principal and
interest with respect to the Loans held by the Banks shall be shared by the Banks pro rata and all
such payments with respect to participations in the LC Liabilities and the Swingline Loans shall be
shared pro rata by the Banks participating therein; provided that nothing in this Section
shall impair the right of any Credit Party to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Loans and the LC Liabilities. The Borrower agrees,
to the fullest extent it may effectively do so under applicable law, that any holder of a
participation in a Loan or the LC Liabilities, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct creditor of the Borrower
in the amount of such participation.




     Section 9.05 Amendments and Waivers.



     Any provision of this Agreement or the Notes may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required Banks (and, if the
rights or duties of the Agent, the Swingline Bank or any LC Issuing Bank are affected thereby, by
the Agent, the Swingline Bank or such LC Issuing Bank, as the case may be); provided that
no such amendment or waiver shall, unless signed by all the Banks directly affected thereby, (i)
increase the Commitment of any Bank over the amount then in effect (it being understood and agreed
that a waiver of any Default shall not constitute an increase in any Commitment of any Bank), (ii)
reduce the principal of, or rate of interest on, any Loan or any Reimbursement Obligation, or of
any fees hereunder (other than as a result of waiving the applicability of any post-Default
increase in interest rates or fees) (provided that amendments to the definitions of
Consolidated Debt and Consolidated EBITDA shall only require the consent of Required Banks), (iii)
postpone the date fixed for any payment of principal of or interest on any Loan, any Reimbursement
Obligation or any fees hereunder or for any termination of any Commitment, (iv) amend this Section
or modify the definition of Required Banks, (v) change the percentage of the Commitments, the
Outstanding Committed Exposures, the Outstanding Total Credit Exposures, the LC Liabilities or of
the aggregate unpaid principal amount of the Loans, in each case, which shall be required for the
Banks or any of them to take any action under this Section or any other provision of the Financing
Documents, (vi) change the manner of application of any payments made under this Agreement or the
Notes or (vii) amend, modify or waive any provision of Sections 2.06, 2.11, 9.03, 9.04 or 9.12.



     Section 9.06 Successors and Assigns.



     (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the Borrower may not assign
or otherwise transfer any of its rights under this Agreement or the Notes, if any, without the
prior written consent of all Banks.



63









 





     (b) Any Bank may at any time, grant to one or more banks or other institutions (each a
“Participant”) participating interests in its Commitment or any or all of its Outstanding Total
Credit Exposure. In the event of any such grant by a Bank of a participating interest to a
Participant, such Bank shall remain responsible for the performance of its obligations hereunder,
and the Borrower and the other Credit Parties shall continue to deal solely and directly with such
Bank in connection with such Bank’s rights and obligations under this Agreement. Any agreement
pursuant to which any Bank may grant such a participating interest shall provide that such Bank
shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder
including, without limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this Agreement described in
clauses (i), (ii) or (iii) of Section 9.05 or the immediately succeeding sentence without the
consent of the Participant. The Borrower agrees that each Participant shall, to the extent
provided in its participation agreement and subject to subsection (e) of this Section 9.06, be
entitled to the benefits of Article 8 with respect to its participating interest to the same extent
as if it were a Bank hereunder.



     (c) Any Bank may at any time assign to one or more banks or other institutions (each an
“Assignee”) all, or, subject to the next sentence, a proportionate part of all, of its rights and
obligations under this Agreement and the Notes, if any, held by such Bank and such Assignee shall
assume such rights and obligations, pursuant to an Assignment and Assumption Agreement in
substantially the form of Exhibit E hereto (an “Assignment and Assumption Agreement”) executed by
such Assignee and such transferor Bank, with (and subject to) the subscribed consent (which shall
not be unreasonably withheld) of the Borrower, each LC Issuing Bank, the Swingline Bank and the
Agent; provided that (i) if an Assignee is another Bank, an affiliate of a Bank, or an
Approved Fund, the consent of the Borrower, each LC Issuing Bank, the Swingline Bank and the Agent
shall not be required unless all or any portion of such transferor Bank’s Commitment, participation
in any Letter of Credit or obligation to participate in any Swingline Loan is being assigned and
(ii) if an Event of Default has occurred and is continuing, the consent of the Borrower shall not
be required; and provided further that such assignment may, but need not, include rights of
the transferor Bank in respect of outstanding Money Market Loans. No assignment of only a
proportionate part of the rights and obligations of a Bank under this Agreement and the Notes, if
any, held by such Bank may be made unless each of (i) the part assigned (i.e., the “Assigned
Amount” set forth in the related Assignment and Assumption Agreement) and (ii) the part retained by
the transferor Bank and any of its affiliates equals $5,000,000 or any larger integral multiple of
$1,000,000. Upon (x) execution and delivery to the Agent of an Assignment and Assumption
Agreement, (y) payment by such Assignee to such transferor Bank of an amount equal to the purchase
price agreed between such transferor Bank and such Assignee, and (z) receipt by the Agent of an
administrative fee in the amount of $3,500 from such transferor Bank or such Assignee for
processing such assignment (if such Assignee is not another Bank, an affiliate of a Bank or an
Approved Fund), such Assignee shall be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank with a Commitment as set forth in such Assignment and Assumption
Agreement, and the transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this subsection (c), the transferor Bank, the Agent and
the Borrower shall make



64









 





appropriate arrangements so that, if required, a new Note is issued to the Assignee. If the
Assignee is not incorporated under the laws of the United States of America or a state thereof, it
shall deliver to the Borrower and the Agent certification as to exemption from deduction or
withholding of any United States Federal income taxes in accordance with Section 8.04.




     (d) Any Bank may at any time pledge or assign all or any portion of its rights under this
Agreement and its Note to a Federal Reserve Bank. No such assignment shall release the transferor
Bank from its obligations hereunder.



     (e) No Assignee, Participant or other transferee of any Bank’s rights shall be entitled to
receive any greater payment under Section 8.03 or 8.04 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made with the Borrower’s
prior written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04 requiring such
Bank to designate a different Applicable Lending Office under certain circumstances or at a time
when the circumstances giving rise to such greater payment did not exist.



     (f) The Agent, acting solely for this purpose as an agent of the Borrower, shall maintain at
its office in New York, New York a copy of each Assignment and Assumption Agreement delivered to it
and a register for the recordation of the names and addresses of the Banks, and the Commitments of,
and principal amount of the Loans and LC Liabilities owing to, each Banks pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Agent and the Banks may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection
by the Borrower and any Agent, at any reasonable time and from time to time upon reasonable prior
notice.



     (g) Notwithstanding anything to the contrary contained herein, if at any time BNY assigns all
of its Commitment and Loans pursuant to subsection (c) above and resigns as Agent pursuant to
Section 7.10, BNY may, upon five (5) Domestic Business Days’ notice to the Borrower, resign as
Swingline Bank. In the event of any such resignation as Swingline Bank, the Borrower shall be
entitled to appoint from among the Banks a successor Bank (with the consent of such Bank) as
Swingline Bank hereunder; provided, however, that no failure by the Borrower to appoint any
such successor shall affect the resignation of BNY as Swingline Bank. If BNY resigns as Swingline
Bank, it shall retain all the rights of the Swingline Bank provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of such resignation, including
the right to require the Banks to make Base Rate Loans or fund participations in outstanding
Swingline Loans pursuant to Section 2.04(f).



     Section 9.07 Collateral.



     Each Credit Party represents to each other Credit Party that it in good faith is not relying
upon any “margin stock” (as defined in Regulation U) as collateral in the extension or maintenance
of the credit provided for in this Agreement.



65









 





     Section 9.08 Governing Law; Submission to Jurisdiction.



     This Agreement and each Note shall be governed by and construed in accordance with the laws of
the State of New York. The Borrower hereby submits to the nonexclusive jurisdiction of the United
States District Court for the Southern District of New York and of any New York State court sitting
in New York City for purposes of all legal proceedings arising out of or relating to the Financing
Documents or the transactions contemplated thereby. The Borrower irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter have to the laying of
the venue of any such proceeding brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.



     Section 9.09 Counterparts; Integration.



     This Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement constitutes the entire agreement and understanding among the parties
hereto and supersedes any and all prior agreements and understandings, oral or written, relating to
the subject matter hereof.



     Section 9.10 Waiver of Jury Trial.



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



     Section 9.11 Confidentiality.



     Each Credit Party agrees to keep confidential this Agreement and any proprietary or financial
information obtained by such Credit Party based on a review of the books and records of the
Borrower or any Subsidiary pursuant to Section 5.06 and any other information to the extent such
information has been stated by the Borrower to be confidential; provided that nothing
herein shall prevent any Credit Party from disclosing this Agreement or such information (i) to any
other Credit Party in connection with the transactions contemplated by the Financing Documents,
(ii) to the officers, directors, employees, agents, attorneys and accountants of such party and its
affiliates who have a need to know such information in accordance with customary banking practices
and who receive such information having been made aware of the restrictions



66









 





set forth in this Section, (iii) upon the order of any court or administrative agency, (iv)
upon the requests or demand of any regulatory agency or authority having jurisdiction over such
party or its affiliates, (v) which has been publicly disclosed, (vi) which has been obtained from
any Person other than the Borrower and its Subsidiaries, provided that such Person is not
known to it to be bound by a confidentiality agreement with the Borrower or its Subsidiaries or
known to it to be otherwise prohibited from transmitting the information to it by a contractual,
legal or fiduciary obligation, (vii) in connection with the exercise of any remedy under the
Financing Documents or (viii) to any actual or proposed participant, assignee or swap counterparty
of all or any of its rights under the Financing Documents, provided that such proposed
participant or assignee shall have agreed in writing, for the benefit of the Borrower as a
third-party beneficiary, to be bound by the provisions of this Section.




     Section 9.12 Survival.



     All indemnities set forth herein, including, without limitation, in Sections 2.14, 2.16, 7.08,
8.03, 8.04 and 9.03, shall survive the execution and delivery of this Agreement, the making of the
Loans, the issuance of the Letters of Credit, the repayment of the Loans, LC Liabilities and other
obligations under the Financing Documents and the expiration or other termination of the
Commitments hereunder.



     Section 9.13 Patriot Act Notice.



     Each Bank and the Agent (for itself and not on behalf of any Bank) 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 “Patriot 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 Bank or the Agent, as applicable, to
identify the Borrower in accordance with the Patriot Act.



67









 





CNF INC.

CREDIT AGREEMENT




     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written



	 	 	 	 	 
	 	 	CNF INC., a Delaware corporation
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	 
	

	 	Name:	 	 
	

	 	Title:	 	 
	 
	 	 	 	 
	 	 	3240 Hillview Avenue
	 	 	Palo Alto, California 94304
	 	 	Facsimile number: (415) 813-0158
	 	 	Telephone number: (415) 813-5321






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	THE BANK OF NEW YORK,
	

	 	 	 	in its capacity as a Bank, as an LC Issuing Bank, as
the Swing Line Bank and as the Agent
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	

	 	 	 	The Bank of New York
	

	 	 	 	10990 Wilshire Boulevard
	

	 	 	 	Suite 1125
	

	 	 	 	Los Angeles, California 90024
	

	 	 	 	Attention: Elizabeth Ying
	

	 	 	 	Facsimile: (310) 996-8667
	

	 	 	 	Telephone: (310) 996-8661






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	PNC BANK, NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	LASALLE BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	U.S. BANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	HARRIS TRUST AND SAVINGS BANK
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	BNP PARIBAS
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	JPMORGAN CHASE BANK, N.A.
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	MORGAN STANLEY BANK
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	KEYBANK NATIONAL ASSOCIATION
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	THE BANK OF NOVA SCOTIA
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	SUMITOMO MITSUI BANKING CORP.
	 
	 	 	 	 
	

	 	 	 	By:

	

	 	 	 	Name:
	

	 	 	 	Title:






 









 






CNF INC.

CREDIT AGREEMENT




	 	 	 	 	 
	

	 	 	 	WILLIAM STREET COMMITMENT CORPORATION

(Recourse only to assets of William Street Commitment Corporation)
	 
	 	 	 	 
	

	 	 	 	By:

Name:
	

	 	 	 	Title: