exv10w44



 





EXHIBIT 10.44




EXECUTION COPY




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




CREDIT AGREEMENT




Dated as of January 26, 2007




Among




APPLIED MATERIALS, INC.

as Borrower




and




THE INITIAL LENDERS NAMED HEREIN




as Initial Lenders




CITICORP USA, INC.




as Administrative Agent




THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SEATTLE BRANCH




as Syndication Agent




and




JPMORGAN CHASE BANK, N.A.




and




KEYBANK NATIONAL ASSOCIATION




as Documentation Agents




 






CITIGROUP GLOBAL MARKETS INC.




and




THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., SEATTLE BRANCH




as Joint Lead Arrangers and Bookrunners




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01.
	 	Certain Defined Terms	 	1
	 
	 	 	 	 
	SECTION 1.02.
	 	Computation of Time Periods	 	11
	 
	 	 	 	 
	SECTION 1.03.
	 	Accounting Terms	 	11
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01.
	 	The Advances	 	11
	 
	 	 	 	 
	SECTION 2.02.
	 	Making the Advances	 	11
	 
	 	 	 	 
	SECTION 2.03.
	 	Fees	 	12
	 
	 	 	 	 
	SECTION 2.04.
	 	Optional Termination or Reduction of the Commitments	 	12
	 
	 	 	 	 
	SECTION 2.05.
	 	Repayment of Advances	 	12
	 
	 	 	 	 
	SECTION 2.06.
	 	Interest on Advances	 	12
	 
	 	 	 	 
	SECTION 2.07.
	 	Interest Rate Determination	 	13
	 
	 	 	 	 
	SECTION 2.08.
	 	Optional Conversion of Advances	 	13
	 
	 	 	 	 
	SECTION 2.09.
	 	Prepayments of Advances	 	14
	 
	 	 	 	 
	SECTION 2.10.
	 	Increased Costs	 	14
	 
	 	 	 	 
	SECTION 2.11.
	 	Illegality	 	14
	 
	 	 	 	 
	SECTION 2.12.
	 	Payments and Computations	 	14
	 
	 	 	 	 
	SECTION 2.13.
	 	Taxes	 	15
	 
	 	 	 	 
	SECTION 2.14.
	 	Sharing of Payments, Etc.	 	17
	 
	 	 	 	 
	SECTION 2.15.
	 	Evidence of Debt	 	17
	 
	 	 	 	 
	SECTION 2.16.
	 	Use of Proceeds	 	17
	 
	 	 	 	 
	SECTION 2.17.
	 	Increase in the Aggregate Commitments	 	18
	 
	 	 	 	 
	SECTION 2.18.
	 	Extension of Termination Date	 	19
	 
	 	 	 	 
	ARTICLE III
	 	 	 	 






i









 






	 	 	 	 	 
	SECTION 3.01.
	 	Conditions Precedent to Effectiveness of Section 2.01	 	20
	 
	 	 	 	 
	SECTION 3.02.
	 	Conditions Precedent to Each Borrowing, Commitment Increase and Extension Date	 	22
	 
	 	 	 	 
	SECTION 3.03.
	 	Determinations Under Section 3.01	 	22
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01.
	 	Representations and Warranties of the Borrower	 	22
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01.
	 	Affirmative Covenants	 	24
	 
	 	 	 	 
	SECTION 5.02.
	 	Negative Covenants	 	28
	 
	 	 	 	 
	SECTION 5.03.
	 	Financial Covenant	 	30
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01.
	 	Events of Default	 	30
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	SECTION 7.01.
	 	Authorization and Action	 	32
	 
	 	 	 	 
	SECTION 7.02.
	 	Agent’s Reliance, Etc.	 	32
	 
	 	 	 	 
	SECTION 7.03.
	 	CUSA and Affiliates	 	33
	 
	 	 	 	 
	SECTION 7.04.
	 	Lender Credit Decision	 	33
	 
	 	 	 	 
	SECTION 7.05.
	 	Indemnification	 	33
	 
	 	 	 	 
	SECTION 7.06.
	 	Successor Agent	 	33
	 
	 	 	 	 
	SECTION 7.07.
	 	Other Agents	 	34
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	SECTION 8.01.
	 	Amendments, Etc.	 	34
	 
	 	 	 	 
	SECTION 8.02.
	 	Notices, Etc.	 	34
	 
	 	 	 	 
	SECTION 8.03.
	 	No Waiver; Remedies	 	35
	 
	 	 	 	 
	SECTION 8.04.
	 	Costs and Expenses	 	35






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	SECTION 8.05.
	 	Right of Set-off	 	36
	 
	 	 	 	 
	SECTION 8.06.
	 	Binding Effect	 	36
	 
	 	 	 	 
	SECTION 8.07.
	 	Assignments and Participations	 	36
	 
	 	 	 	 
	SECTION 8.08.
	 	Confidentiality	 	38
	 
	 	 	 	 
	SECTION 8.09.
	 	Governing Law	 	38
	 
	 	 	 	 
	SECTION 8.10.
	 	Execution in Counterparts	 	39
	 
	 	 	 	 
	SECTION 8.11.
	 	Jurisdiction, Etc.	 	39
	 
	 	 	 	 
	SECTION 8.12.
	 	Patriot Act Notice	 	39
	 
	 	 	 	 
	SECTION 8.13.
	 	Waiver of Jury Trial	 	40
	 
	 	 	 	 
	Schedules
	 	 	 	 
	 
	 	 	 	 
	Schedule I — List of Applicable Lending Offices	 	 
	 
	 	 	 	 
	Schedule 5.02(a) — Existing Liens*	 	 
	 
	 	 	 	 
	Schedule 5.02(a)(xii) — Special Unencumbered Property*	 	 
	 
	 	 	 	 





	 	 	 	 	 
	Exhibits
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	-
	 	Form of Note
	 
	 	 	 	 
	Exhibit B

	 	-
	 	Form of Notice of Borrowing
	 
	 	 	 	 
	Exhibit C

	 	-
	 	Form of Assignment and Acceptance
	 
	 	 	 	 
	Exhibit D

	 	-
	 	Form of Opinion of Vice President, Legal Services of the Borrower*
	 
	 	 	 	 
	Exhibit E

	 	-
	 	Form of Opinion of Orrick, Herrington & Sutcliffe, LLP*
	 
	 	 	 	 
	Exhibit F

	 	-
	 	Form of Opinion of Vice President, Legal Services of the Borrower (Commitment Increase)*








 




			
	*  These schedules and exhibits have not been filed herewith. The Company agrees to furnish
supplementally any omitted materials to the Securities and Exchange Commission upon request.




iii









 










CREDIT AGREEMENT




Dated as of January 26, 2007




          APPLIED MATERIALS, INC., a Delaware corporation (the “Borrower”), the banks, financial
institutions and other institutional lenders (the “Initial Lenders”) listed on the
signature pages hereof, and CITICORP USA, INC. (“CUSA”), as agent (the “Agent”) for
the Lenders (as hereinafter defined), agree as follows:




ARTICLE I




DEFINITIONS AND ACCOUNTING TERMS




          SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):





     “Advance” means an advance by a Lender to the Borrower as part of a Borrowing
and refers to a Base Rate Advance or a Eurodollar Rate Advance (each of which shall be a
“Type” of Advance).




     “Affiliate” means, as to any Person, other than in respect of the Borrower or
any of its direct or indirect Subsidiaries, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person. For purposes of
this definition, the term “control” (including the terms “controlling”, “controlled by” and
“under common control with”) of a Person means the possession, direct or indirect, of the
power to vote, for purposes of Section 5.02(f) 10%, and for all other purposes 5%, or more
of the Voting Stock of such Person or to direct or cause the direction of the management and
policies of such Person, whether through the ownership of Voting Stock, by contract or
otherwise.




     “Agent’s Account” means the account of the Agent maintained by the Agent at
Citibank at its office at 388 Greenwich Street, New York, New York 10013, Account No.
36852248, Attention: Bank Loan Syndications.




     “Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.




     “Applicable Margin” means, as of any date, a percentage per annum determined by
reference to the Public Debt Rating in effect on such date as set forth below:



	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	Applicable Margin for	 
	 	Public Debt Rating	 	 	Applicable Margin for	 	 	Eurodollar Rate	 
	 	S&P/Moody’s	 	 	Base Rate Advances	 	 	Advances	 
	 	Level 1
	 	 	 	 	 	 	 
	 	A+/A1 or above
	 	 	***	 	 	***	 
	 	Level 2
	 	 	 	 	 	 	 
	 	A/A2
	 	 	***	 	 	***	 
	 	Level 3
	 	 	 	 	 	 	 
	 	A-/A3
	 	 	***	 	 	***	 
	 	Level 4
	 	 	 	 	 	 	 
	 	BBB+/Baa1
	 	 	***	 	 	***	 
	 	Level 5
	 	 	 	 	 	 	 
	 	Lower than Level
4
 or unrated
	 	 	***	 	 	***	 
	 







 




			
	***   INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.




 









 











     “Applicable Percentage” means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating in effect on such date as set forth below:



	 	 	 	 	 	 
	 
	 	Public Debt Rating	 	 	 	 
	 	S&P/Moody’s	 	 	Applicable Percentage	 
	 	Level 1
	 	 	 	 
	 	A+/A1 or above
	 	 	***	 
	 	Level 2
	 	 	 	 
	 	A/A2
	 	 	***	 
	 	Level 3
	 	 	 	 
	 	A-/A3
	 	 	***	 
	 	Level 4
	 	 	 	 
	 	BBB+/Baa1
	 	 	***	 
	 	Level 5
	 	 	 	 
	 	Lower than Level 4
 or unrated
	 	 	***	 
	 






     “Applicable Utilization Fee” means (a) as of any date that the aggregate
Advances are equal to or less than 50% of the aggregate Commitments, a percentage per annum
equal to *** and (b) as of any date that the aggregate Advances exceed 50% of the aggregate
Commitments, a percentage per annum determined by reference to the Public Debt Rating in
effect on such date as set forth below:



	 	 	 	 	 	 
	 
	 	Public Debt Rating	 	 	Applicable	 
	 	S&P/Moody’s	 	 	Utilization Fee	 
	 	Level 1
	 	 	 	 
	 	A+/A1 or above
	 	 	***	 
	 	Level 2
	 	 	 	 
	 	A/A2
	 	 	***	 
	 	Level 3
	 	 	 	 
	 	A-/A3
	 	 	***	 
	 	Level 4
	 	 	 	 
	 	BBB+/Baa1
	 	 	***	 
	 	Level 5
	 	 	 	 
	 	Lower than Level 4
 or unrated
	 	 	***	 
	 






     “Assignment and Acceptance” means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.




     “Assuming Lender” has the meaning specified in Section 2.17(d).




     “Assumption Agreement” has the meaning specified in Section 2.17(d)(ii).




     “Base Rate” means a fluctuating interest rate per annum in effect from time to
time, which rate per annum shall at all times be equal to the highest of:




     (a) the rate of interest announced publicly by Citibank in New York, New York,
from time to time, as Citibank’s base rate;




     (b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to the next
higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States money market banks, such three-week
moving average (adjusted to the basis of a year of 360 days) being determined weekly





 




			
	***   INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.





2









 











on each Monday (or, if such day is not a Business Day, on the next succeeding
Business Day) for the three-week period ending on the previous Friday by Citibank on
the basis of such rates reported by certificate of deposit dealers to and published
by the Federal Reserve Bank of New York or, if such publication shall be suspended
or terminated, on the basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized standing selected by
Citibank, by (B) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for Citibank with respect to liabilities consisting of
or including (among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such three-week
period of the annual assessment rates estimated by Citibank for determining the then
current annual assessment payable by Citibank to the Federal Deposit Insurance
Corporation (or any successor) for insuring U.S. dollar deposits of Citibank in the
United States; and




     (c) 1/2 of one percent per annum above the Federal Funds Rate.




     “Base Rate Advance” means an Advance that bears interest as provided in Section
2.06(a)(i).




     “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.




     “Borrower Information” has the meaning specified in Section 8.08.




     “Borrowing” means a borrowing consisting of simultaneous Advances of the same
Type made by each of the Lenders pursuant to Section 2.01.




     “Business Day” means a day of the year on which banks are not required or
authorized by law to close in New York City and, if the applicable Business Day relates to
any Eurodollar Rate Advances, on which dealings are carried on in the London interbank
market, provided, that if such day relates to the giving of a Notice of Borrowing, a
payment or prepayment of principal of or interest on a Borrowing or a Conversion of a
Borrowing, “Business Day” shall exclude any date on which banks are not open for business in
the People’s Republic of China.




     “Capitalized Lease” means any lease the obligation for rentals with respect to
which is required to be capitalized on a Consolidated balance sheet of the lessee and its
Subsidiaries in accordance with GAAP.




     “Capitalized Rentals” of any Person means at any date the amount at which the
aggregate rentals due and to become due under all Capitalized Leases under which such Person
is a lessee would be reflected as a liability on a Consolidated balance sheet of such
Person.




     “Citibank” means Citibank, N.A.




     “Commitment” means as to any Lender (a) the amount set forth opposite such
Lender’s name on the signature pages hereof, (b) if such Lender has become a Lender
hereunder pursuant to an Assumption Agreement, the amount set forth in such Assumption
Agreement or (c) if such Lender has entered into an Assignment and Acceptance, the amount
set forth for such Lender in the Register maintained by the Agent pursuant to Section
8.07(d), as such amount may be reduced pursuant to Section 2.04 or increased pursuant to
Section 2.17.




     “Commitment Date” has the meaning specified in Section 2.17(b).




     “Commitment Increase” has the meaning specified in Section 2.17(a).



3









 






     “Consenting Lender” has the meaning specified in Section 2.18(b).




     “Consolidated” refers to the consolidation of accounts in accordance with GAAP.




     “Consolidated Debt” means all Debt of the Borrower and its Subsidiaries,
determined in accordance with GAAP on a consolidated basis after eliminating intercompany
items.




     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated Funded Debt, to (b) Consolidated EBITDA for the most recently completed
four consecutive fiscal quarters ending on or prior to such date, in each case for the
Borrower and its Subsidiaries as of such date.




     “Consolidated Net Tangible Assets” means, at any date, the total amount of all
Tangible Assets of the Borrower and its Subsidiaries after deducting therefrom all
liabilities which in accordance with GAAP would be included on their consolidated balance
sheet, except Consolidated Debt.




     “Consolidated Total Assets” means, at any date, the total assets of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance with GAAP.




     “Convert”, “Conversion” and “Converted” each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.07
or 2.08.




     “Debt” of any Person means, without duplication, (a) all Indebtedness of such
Person for borrowed money, (b) all obligations of such Person for the deferred and unpaid
purchase price of property or services (other than trade payables and accrued expenses
incurred in the ordinary course of such Person’s business), (c) all Indebtedness of such
Person evidenced by notes, bonds, debentures or other similar evidences of indebtedness, (d)
all obligations of such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even though the rights
and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property) including, without limitation, obligations
secured by Liens arising from the sale or transfer of notes or accounts receivable;
provided that Debt shall not include any sale or transfer of notes or accounts
receivable whether or not precautionary Liens are filed or recorded in connection with such
sale or transfer of such notes or accounts receivable, if and only if such sale or transfer
(A) is accounted for as true sale under GAAP and (B) pursuant to which there is no recourse
(other than recourse for breach of customary representations and warranties or in connection
with any such sales or transfers) to the seller of such notes or accounts receivable (as
evidenced by there being no accounting reserve taken or required to be taken, which in the
event a reserve is taken, the amount of Debt shall be deemed to be the amount of such
reserve), and provided, further, that all trade payables and accrued
expenses constituting current liabilities shall be excluded, (e) all Capitalized Rentals,
(f) reimbursement obligations of such Person in respect of credit enhancement instruments,
which reimbursement obligations are then due and payable by such Person, (g) all Debt of
others referred to in clauses (a) through (f) above or clause (h) below guaranteed directly
or indirectly in any manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (1) to pay or purchase such Debt or to advance or supply
funds for the payment or purchase of such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such Debt against loss, (3)
to supply funds to or in any other manner invest in the debtor (including any agreement to
pay for property or services irrespective of whether such property is received or such
services are rendered) or (4) otherwise to assure a creditor against loss, and (h) all Debt
referred to in clauses (a) through (g) above secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such Debt, including,
without limitation, obligations secured by Liens arising from the sale or transfer of notes,
accounts receivable or other assets; provided, however, that



4









 







obligations of such Person secured by Liens on notes, accounts receivable or other
assets sold or transferred in a transaction which is accounted for as a true sale under GAAP
shall not be Debt under this definition.




     The Borrower’s obligations under operating leases and Off-Balance Sheet Leases shall be
excluded from this definition of Debt; provided that (A) no such exclusion shall be
made if and to the extent that GAAP would require such obligations to be classified as debt
for borrowed money and (B) in any event the term “Debt” shall include the Excess Lease
Financed Amount (if any).




     “Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.




     “Domestic Lending Office” means, with respect to any Lender, the office of such
Lender specified as its “Domestic Lending Office” opposite its name on Schedule I hereto or
in the Assumption Agreement or the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to time specify to
the Borrower and the Agent.




     “EBITDA” means, for any period, Net Income plus, to the extent deducted in
determining such Net Income, the sum of (a) Interest Expense, (b) income tax expense, (c)
depreciation expense, (d) amortization expense, (e) one-time non-cash charges related to
asset impairments and restructuring activities, and (f) cash and non-cash portions of
discontinued operations and extraordinary items, all determined on a Consolidated basis for
the Borrower and its Subsidiaries in accordance with GAAP.




     “Effective Date” has the meaning specified in Section 3.01.




     “Eligible Assignee” means (i) a Lender; (ii) an Affiliate of a Lender that, so
long as no Default has occurred and is continuing, is approved by the Borrower, such
approval not to be unreasonably withheld or delayed; and (iii) any other Person that, so
long as no Default has occurred and is continuing, has a rating for any class of non-credit
enhanced long-term senior unsecured debt of not lower than A by S&P or A2 by Moody’s and is
approved by the Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.




     “Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Substances or arising from alleged
injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.




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




     “Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.




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



5









 






     “ERISA Affiliate” means any member of the ERISA Group.




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




     “Eurocurrency Liabilities” has the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from time to time.




     “Eurodollar Lending Office” means, with respect to any Lender, the office of
such Lender specified as its “Eurodollar Lending Office” opposite its name on Schedule I
hereto or in the Assumption Agreement or the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time specify to the Borrower and
the Agent.




     “Eurodollar Rate” means, for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Borrowing, an interest rate per annum equal to the rate
per annum obtained by dividing (a) the rate per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum) appearing on Moneyline Telerate Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period or, if for any reason such
rate is not available, the rate per annum at which deposits in U.S. dollars are offered by
the principal office of Citibank in London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to Citibank’s Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period and for a period equal
to such Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period.




     “Eurodollar Rate Advance” means an Advance that bears interest as provided in
Section 2.06(a)(ii).




     “Eurodollar Rate Reserve Percentage” for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing means the reserve percentage applicable
two Business Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is determined)
having a term equal to such Interest Period.




     “Events of Default” has the meaning specified in Section 6.01.




     “Extension Date” has the meaning specified in Section 2.18(b).




     “Excess Lease Financed Amount” means the amount (if any) by which the Lease
Financed Amount exceeds (a) $300,000,000 at any time when the Borrower’s Public Debt Rating
is lower than BBB+ by S&P or Baa1 by Moody’s or (b) $600,000,000 at any time when the
Borrower’s Public Debt rating is at least BBB+ by S&P or Baa1 by Moody’s.




     “Federal Funds Rate” means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day (or,



6









 







if such day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions received by
the Agent from three Federal funds brokers of recognized standing selected by it.




     “Funded Debt” means, with respect to any Person for such Person and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP, at the time of
determination, the sum of the outstanding principal amount of all Debt which would be
reflected as liabilities on the balance sheet of such Person, other than the following items
which shall not be included in Funded Debt: (a) Debt or other obligations of others
guaranteed by such Person and its Subsidiaries; (b) all reimbursement obligations (whether
contingent or otherwise) in respect of the undrawn portion of letters of credit, bankers’
acceptances, surety or other bonds, and similar instruments (including, without limitation,
those outstanding with respect to letters of credit); and (c) all liabilities in respect of
unfunded vested benefits under any Plan.




     “GAAP” means at any time generally accepted accounting principles as then in
effect, applied on a basis consistent (except for changes concurred in by the Borrower’s
independent public accountants) with the most recent audited consolidated financial
statements of the Borrower and its Subsidiaries delivered to the Lenders; provided
that, if the Borrower notifies the Agent that the Borrower wishes to amend any covenant in
Article V or any definition of a term used in any such covenant to eliminate the effect of
any change in generally accepted accounting principles on the operation of such covenant (or
if the Agent (with the consent or at the direction of the Required Lenders) notifies the
Borrower that it wishes to amend any such covenant or definition for such purpose), then,
for purposes of such covenant or definition only, “GAAP” shall mean GAAP as in effect
immediately before the relevant change in generally accepted accounting principles became
effective, until either such notice is withdrawn or such covenant or definition is amended
in a manner satisfactory to the Borrower and the Required Lenders.




     “Hazardous Substances” means any substance or waste defined as “toxic” or
“hazardous” under any Environmental Laws, including, without limitation, petroleum, its
derivatives, by-products and other hydrocarbons.




     “Hedge Agreements” means interest rate swap, cap or collar agreements, interest
rate future or option contracts, currency swap agreements, currency future or option
contracts and other similar agreements.




     “Increase Date” has the meaning specified in Section 2.17(a).




     “Increasing Lender” has the meaning specified in Section 2.17(b).




     “Indebtedness” of any Person means and includes all obligations of such Person
which in accordance with GAAP should be classified upon a balance sheet of such Person as
liabilities of such Person.




     “Intangible Assets” means at any date the total amount of all assets of the
Borrower and its Subsidiaries that are properly classified as “intangible assets” in
accordance with GAAP and, in any event, shall include, without limitation, goodwill,
patents, trade names, trademarks, copyrights, franchises, experimental expense, organization
expense, unamortized debt discount and expense, and deferred charges other than prepaid
insurance, prepaid leases and prepaid taxes and current deferred taxes which are classified
on the balance sheet of the Borrower and its Subsidiaries as a current asset in accordance
with GAAP and in which classification the Borrower’s independent public accountants concur;
provided that the foregoing Intangible Assets shall be deemed to be in an amount equal to
zero at all times during which such Intangible Assets, in the aggregate, are less than 2% of
stockholders’ equity of the Borrower.




     “Interest Expense” of any Person for any period means the aggregate amount of
interest or fees paid, accrued or scheduled to be paid or accrued in respect of any Debt
(including the interest portion of



7









 







rentals under Capitalized Leases) and all but the principal component of payments in respect
of conditional sales, equipment trust or other title retention agreements paid, accrued or
scheduled to be paid or accrued by such Person during such period, net of interest income,
determined in accordance with GAAP.




     “Interest Period” means, for each Eurodollar Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Advance or the date of the
Conversion of any Advance into such an Advance and ending on the last day of the period
selected by the Borrower pursuant to the provisions below and, thereafter, each subsequent
period commencing on the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six months as the Borrower
may, upon notice received by the Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select; provided,
however, that:




     (i) the Borrower may not select any Interest Period that ends after the Termination
Date;




     (ii) Interest Periods for Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;




     (iii) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, in the case of an Interest
Period for a Eurodollar Rate Advance that, if such extension would cause the last day of
such Interest Period to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day; and




     (iv) in the case of an Interest Period for a Eurodollar Rate Advance, whenever the
first day of any Interest Period occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such succeeding calendar
month.




     “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended
from time to time, and the regulations promulgated and rulings issued thereunder.




     “Lease Financed Amount” means, with respect to Off-Balance Sheet Leases, (a) in
the case of the Existing Off-Balance Sheet Lease, the sum of the aggregate outstanding
principal amount of the Loans (as defined therein) and the outstanding Investment Amounts
(as defined therein) or (b) in the case of any other Off-Balance Sheet Lease, the sum of the
comparable amounts as defined therein.




     “Lenders” means the Initial Lenders, each Assuming Lender that shall become a
party hereto pursuant to Section 2.17 or 2.18 and each Person that shall become a party
hereto pursuant to Section 8.07.




     “Lien” means any lien, security interest or other charge or encumbrance of any
kind, or any other type of preferential arrangement, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property.




Off Balance Sheet Leases and the arrangements set forth therein shall be excluded from this
definition; provided that:




     (a) if any portion of the Lease Financed Amount is included in Debt under the last
sentence of the definition of Debt, then for purposes of Section 5.02(a), Off-Balance Sheet
Leases and the arrangements set forth therein shall be deemed to create a Lien securing the
Excess Lease Financed Amount; and



8









 






     (b) if Off-Balance Sheet Leases and the arrangements set forth therein create a lien on
any property or assets other than (i) the property and assets leased pursuant to Off-Balance
Sheet Leases, (ii) rights of the Borrower as sublessor of any portion of such property and
assets and (iii) Permitted Lease Collateral, such lien shall not be excluded from this
definition.




     “Margin Stock” means “margin stock” as such term is defined in Regulation U.




     “Material Adverse Effect” means any material adverse change in the business,
condition (financial or otherwise) or operations of the Borrower or the Borrower and its
Subsidiaries taken as a whole.




     “Material Debt” means Debt (other than the Note) of the Borrower and/or one or
more of its Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate principal or face amount exceeding $150,000,000.




     “Material Financial Obligations” means a principal or face amount of Debt
and/or payment obligations (calculated after giving effect to any applicable netting
agreements) in respect of Hedge Agreements of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, exceeding in the
aggregate $150,000,000.




     “Material Plan” means, at any time, a Plan or Plans having aggregate Unfunded
Liabilities in excess of $150,000,000.




     “Moody’s” means Moody’s Investors Service, Inc. or its successors.




     “Multiemployer Plan” means, at any time, an employee pension benefit plan
within the meaning of Section 4001(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 contribution, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.




     “Net Income” of any Person means, for any period, net income before (i)
extraordinary items, (ii) the results of discontinued operations and (iii) the effect of any
cumulative change in accounting principles, determined in accordance with GAAP.




     “Non-Consenting Lender” has the meaning specified in Section 2.18(b).




     “Note” means a promissory note of the Borrower payable to the order of any
Lender, delivered pursuant to a request made under Section 2.15 in substantially the form of
Exhibit A hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advances made by such Lender.




     “Notice of Borrowing” has the meaning specified in Section 2.02(a).




     “Off-Balance Sheet Leases” means one or more lease agreements and related
agreements entered into by the Borrower or any of its Subsidiaries from time to time, in
each case in a transaction which the Borrower or such Subsidiary intends to be treated as an
“operating lease” for financial reporting purposes but as a loan for one or more of the
following purposes: (a) federal, state and local income or franchise tax, (b) bankruptcy,
(c) real estate law and (d) commercial law (including uniform commercial law).




     “Patriot Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56.




     “PBGC” means the Pension Benefit Guaranty Corporation (or any successor).



9









 






     “Permitted Lease Collateral” means any cash or cash equivalents securing the
obligations of the Borrower or its Subsidiaries in any Off-Balance Sheet Lease.




     “Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity, or a government or any political subdivision or agency
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.




     “Public Debt Rating” means, as of any date for S&P, the lowest rating that has
been most recently announced by S&P for any class of non-credit enhanced long-term senior
unsecured debt issued by the Borrower and, as of any date for Moody’s, the lowest rating
that has been most recently announced by Moody’s for any class of non-credit enhanced
long-term senior unsecured debt issued by the Borrower. For purposes of the foregoing, (a)
if only one of S&P and Moody’s shall have in effect a Public Debt Rating, the Applicable
Margin, the Applicable Percentage and the Applicable Utilization Fee shall be determined by
reference to the available rating; (b) if neither S&P nor Moody’s shall have in effect a
Public Debt Rating, the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee will be set in accordance with Level 5 under the definition of
“Applicable Margin”, “Applicable Percentage” or “Applicable Utilization
Fee”, as the case may be; (c) if the ratings established by S&P and Moody’s shall fall
within different levels, the Applicable Margin, the Applicable Percentage and the Applicable
Utilization Fee shall be based upon the higher rating unless the such ratings differ by two
or more levels, in which case the applicable level will be deemed to be one level above the
lower of such levels; (d) if any rating established by S&P or Moody’s shall be changed, such
change shall be effective as of the date on which such change is first announced publicly by
the rating agency making such change; and (e) if S&P or Moody’s shall change the basis on
which ratings are established, each reference to the Public Debt Rating announced by S&P or
Moody’s, as the case may be, shall refer to the then equivalent rating by S&P or Moody’s, as
the case may be.




     “Register” has the meaning specified in Section 8.07(d).




     “Required Lenders” means at any time Lenders owed at least a majority in
interest of the then aggregate unpaid principal amount of the Advances owing to Lenders, or,
if no such principal amount is then outstanding, Lenders having at least a majority in
interest of the Commitments.




     “Reportable Event” means any “reportable event” as defined in section 4043 of
ERISA for which the 30-day notice requirement has not been waived under applicable
regulations.




     “S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc. or
its successors.



     “SEC” means the Securities and Exchange Commission.




     “Subsidiary” means, as to any Person, any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the time
directly or indirectly owned by such Person; unless otherwise specified, “Subsidiary” means
a Subsidiary of the Borrower.




     “Tangible Assets” means, at any date, Consolidated Total Assets (less
depreciation, depletion and other properly deductible valuation reserves) after deducting
(but without duplication) Intangible Assets.



10









 






     “Termination Date” means the earlier of (a) January 26, 2012, subject to the
extension thereof pursuant to Section 2.18 and (b) the date of termination in whole of the
Commitments pursuant to Section 2.04 or 6.01; provided, however, that the
Termination Date of any Lender that is a Non-Consenting Lender to any requested extension
pursuant to Section 2.18 shall be the Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement.




     “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.




     “Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.



          SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.




          SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP.




ARTICLE II




AMOUNTS AND TERMS OF THE ADVANCES




          SECTION 2.01. The Advances. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make Advances to the Borrower from time to time on any
Business Day during the period from the Effective Date until the Termination Date in an aggregate
amount not to exceed at any time outstanding such Lender’s Commitment. Each Borrowing shall be in
an aggregate amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof and
shall consist of Advances of the same Type made on the same day by the Lenders ratably according to
their respective Commitments. Within the limits of each Lender’s Commitment, the Borrower may
borrow under this Section 2.01, prepay pursuant to Section 2.09 and reborrow under this Section
2.01.




          SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made on notice,
given not later than (x) 1:00 P.M. (New York City time) on the third Business Day prior to the date
of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances or (y)
12:00 noon (New York City time) on the Business Day prior to the date of the proposed Borrowing in
the case of a Borrowing consisting of Base Rate Advances, by the Borrower to the Agent, which shall
give to each Lender prompt notice thereof by telecopier. Each such notice of a Borrowing (a
“Notice of Borrowing”) shall be by telephone, confirmed immediately in writing, or
telecopier in substantially the form of Exhibit B hereto, specifying therein the requested (i) date
of such Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate amount of such
Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Advances, initial
Interest Period for each such Advance. Each Lender shall, before 2:00 P.M. (New York City time) on
the date of such Borrowing make available for the account of its Applicable Lending Office to the
Agent at the Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing.
After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth
in Article III, the Agent will make such funds available to the Borrower at such account as is
mutually agreed between the Borrower and the Agent.




11









 








          (b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not
select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is less
than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than six separate Borrowings.




          (c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower.




          (d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of
such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section 2.02 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 Lender shall not have so made such ratable portion
available to the Agent, such Lender and the Borrower severally agree to repay to the Agent
forthwith on 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, the interest rate applicable at the time to Advances
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute
such Lender’s Advance as part of such Borrowing for purposes of this Agreement.




          (e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.




          SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay to the
Agent for the account of each Lender a facility fee on the amount of such Lender’s Commitment,
irrespective of usage, from the date hereof in the case of each Initial Lender and from the
effective date specified in the Assumption Agreement or in the Assignment and Acceptance pursuant
to which it became a Lender in the case of each other Lender until the Termination Date at a rate
per annum equal to the Applicable Percentage in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and December, commencing March 31, 2007,
and on the Termination Date.




          (b) Agent’s Fees. The Borrower shall pay to the Agent for its own account such fees
as may from time to time be agreed between the Borrower and the Agent.




          SECTION 2.04. Optional Termination or Reduction of the Commitments. The Borrower
shall have the right, upon at least three Business Days’ notice to the Agent, to terminate in whole
or permanently reduce ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof. Once terminated or reduced,
the Commitment may not be reinstated other than as provided in Section 2.17.




          SECTION 2.05. Repayment of Advances. The Borrower shall repay to the Agent for the
ratable account of each Lender on the Termination Date applicable to such Lender the aggregate
principal amount of the Advances owing to such Lender then outstanding.




          SECTION 2.06. Interest on Advances. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each Lender from the
date of such Advance until such principal amount shall be paid in full, at the following rates per
annum:





     (i) Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from time to time plus
(z) the Applicable Utilization Fee in effect from time to time, payable in arrears quarterly
on the last day of each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.



12









 






     (ii) Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance
plus (y) the Applicable Margin in effect from time to time plus (z) the
Applicable Utilization Fee in effect from time to time, payable in arrears on the last day
of such Interest Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three months from the
first day of such Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.



          (b) Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the Agent may, and upon the request of the Required Lenders shall, require the Borrower to
pay interest (“Default Interest”) on (i) the unpaid principal amount of each Advance owing
to each Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii) above, at a
rate per annum equal at all times to 2% per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by
law, the amount of any interest, fee or other amount payable hereunder that is not paid when due,
from the date such amount shall be due until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand, at a rate per annum equal at all times
to 2% per annum above the rate per annum required to be paid on Base Rate Advances pursuant to
clause (a)(i) above, provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall begin to accrue at such time and be payable
hereunder whether or not previously required by the Agent.




          SECTION 2.07. Interest Rate Determination. (a) The Agent shall give prompt notice
to the Borrower and the Lenders of the applicable interest rate determined by the Agent for
purposes of Section 2.06(a).




          (b) If, with respect to any Eurodollar Rate Advances, the Required Lenders notify the Agent
that the Eurodollar Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Required Lenders of making, funding or maintaining their respective Eurodollar Rate
Advances for such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each Eurodollar Rate Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of the
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.




          (c) If the Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Agent will forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances.




          (d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$10,000,000, such Advances shall automatically Convert into Base Rate Advances.




          (e) Upon the occurrence and during the continuance of any Event of Default, (i) each
Eurodollar Rate Advance will automatically, on the last day of the then existing Interest Period
therefor Convert into a Base Rate Advance and (ii) the obligation of the Lender to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended.




          SECTION 2.08. Optional Conversion of Advances. The Borrower may on any Business Day,
upon notice given to the Agent not later than 12:00 noon (New York City time) on the third Business
Day prior to the date of the proposed Conversion and subject to the provisions of Sections 2.07 and
2.11, Convert all Advances of one Type comprising the same Borrowing into Advances of another Type;
provided, however, that any Conversion of Eurodollar Rate Advances into Advances of another type
shall be made only on the last day of an Interest Period for such Advances, any Conversion of Base
Rate Advances into Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(b) and no Conversion of any Advances shall result in more separate
Eurodollar Rate Advances than permitted under Section 2.02(b). Each such notice of a Conversion
shall, within the restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial Interest Period for each such Advance.
Each notice of Conversion shall be irrevocable and binding on the Borrower.




13









 








          SECTION 2.09. Prepayments of Advances. The Borrower may, upon notice at least two
Business Days’ prior to the date of such prepayment, in the case of Eurodollar Rate Advances, and
not later than 12:00 noon (New York City time) on the date of such prepayment, in the case of Base
Rate Advances, to the Agent stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the outstanding principal amount
of the Advances comprising part of the same Borrowing in whole or in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and (y) in the event of any such prepayment of a
Eurodollar Rate Advance, the Borrower shall be obligated to reimburse the Lenders in respect
thereof pursuant to Section 8.04(c).




          SECTION 2.10. Increased Costs. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation after the Effective Date or (ii) the
compliance with any guideline or request from any central bank or other governmental authority
(whether or not having the force of law) after the Effective Date, there shall be any increase in
the cost to any Lender of agreeing to make or making, funding or maintaining Eurodollar Rate
Advances (excluding for purposes of this Section 2.10 any such increased costs resulting from (I)
Taxes or Other Taxes (as to which Section 2.13 shall govern) and (II) changes in the basis of
taxation of overall net income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the Borrower shall from time to time,
upon demand by such Lender (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender additional amounts sufficient to compensate such Lender for such increased
cost. A certificate as to the amount of such increased cost, submitted to the Borrower and the
Agent by such Lender, shall be conclusive and binding for all purposes, absent manifest error.




          (b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender’s commitment to lend hereunder and other commitments
of this type, then, upon demand by such Lender (with a copy of such demand to the Agent), the
Borrower shall pay to the Agent for the account of such Lender, from time to time as specified by
such Lender, additional amounts sufficient to compensate such Lender or such corporation in the
light of such circumstances, to the extent that such Lender reasonably determines such increase in
capital to be allocable to the existence of such Lender’s commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.




          (c) If any Lender fails to give the Borrower and the Agent any prompt notice required by this
Section 2.10, the Borrower shall not be required to indemnify and compensate such Lender under this
Section 2.10 for any amounts attributable to the event or factual circumstance required to be
disclosed in such notice and arising during or with respect to any period ending more than 90 days
before notice thereof has been delivered to the Borrower and the Agent, provided that this
subsection (c) shall in no way limit the right of any Lender to demand or receive compensation to
the extent that such compensation relates to any law, rule, regulation, interpretation,
administration, request or directive (or any change therein) which by its terms has retroactive
application if such notice is given within 90 days after the date of enactment or effectiveness of
such retroactive law, rule, regulation, interpretation, administration, request or directive (or
change therein).




          SECTION 2.11. Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent and the Borrower that the introduction of or any change in or in
the interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will automatically, upon such
demand, Convert into a Base Rate Advance and (b) the obligation of the Lenders to make Eurodollar
Rate Advances or to Convert Advances into Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances causing such suspension no
longer exist.




          SECTION 2.12. Payments and Computations. (a) The Borrower shall make each payment
hereunder, irrespective of any right of counterclaim or set-off, not later than 11:00 A.M. (New
York City time) on the day when due in U.S. dollars to the Agent at the Agent’s Account in same day
funds. The Agent will promptly thereafter cause to be distributed like funds relating to the
payment of principal or interest or facility fees ratably




14









 







(other than amounts payable pursuant to
Section 2.10, 2.13 or 8.04(c)) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount payable to any Lender
to such Lender for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming Lender becoming a Lender hereunder
as a result of a Commitment Increase pursuant to Section 2.17 or an extension of the Termination
Date pursuant to Section 2.18, and upon the Agent’s receipt of such Lender’s Assumption Agreement
and recording of the information contained therein in the Register, from and after the applicable
Increase Date or Extension Date, as the case may be, the Agent shall make all payments hereunder
and under any Notes issued in connection therewith in respect of the interest assumed thereby to
the Assuming Lender. Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 8.07(c), from and after the
effective date specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly between themselves.




          (b) All computations of interest based on the Base Rate shall be made by the Agent on the
basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on
the Eurodollar Rate or the Federal Funds Rate and of facility fees shall be made by the Agent on
the basis of a year of 360 days, in each case for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest or facility fees
are payable. Each determination by the Agent of an interest rate hereunder shall be conclusive and
binding for all purposes, absent manifest error.




          (c) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest or
facility fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.




          (d) Unless the Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Lenders 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 Lender on such due
date an amount equal to the amount then due such Lender. If and to the extent the Borrower shall
not have so made such payment in full to the Agent, each Lender shall repay to the Agent forthwith
on demand such amount distributed to such Lender together with interest thereon, for each day from
the date such amount is distributed to such Lender until the date such Lender repays such amount to
the Agent, at the Federal Funds Rate.




          SECTION 2.13. Taxes. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under the Notes or any other documents to be delivered
hereunder shall be made, in accordance with Section 2.12 or the applicable provisions of such other
documents, free and clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Agent, taxes imposed on its overall net
income, and franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction under
the laws of which such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction of such Lender’s
Applicable Lending Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities in respect of payments hereunder
or under the Notes 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 or any other documents to be delivered hereunder to any Lender or the Agent, (i) the sum
payable shall be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section 2.13) such Lender 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 and (iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.




15









 








          (b) In addition, the Borrower shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or any other documents to be delivered hereunder or from the
execution, delivery or registration of, performing under, or otherwise with respect to, this
Agreement or the Notes or any other documents to be delivered hereunder (hereinafter referred to as
“Other Taxes”).




          (c) The Borrower shall indemnify each Lender and the Agent for and hold it harmless against
the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind imposed
by any jurisdiction on amounts payable under this Section 2.13) imposed on or paid by such Lender
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 Lender or the Agent (as the case may be) makes written demand therefor.




          (d) Within 30 days after the date of any payment of Taxes, the Borrower shall furnish to the
Agent, at its address referred to in Section 8.02, the original or a certified copy of a receipt
evidencing such payment to the extent such a receipt is issued therefor, or other written proof of
payment thereof that is reasonably satisfactory to the Agent. In the case of any payment hereunder
or under the Notes or any other documents to be delivered hereunder by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower determines that no Taxes are payable in
respect thereof, the Borrower shall furnish, or shall cause such payor to furnish, to the Agent, at
such address, an opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms “United
States” and “United States person” shall have the meanings specified in Section 7701 of
the Internal Revenue Code.




          (e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of the Assumption Agreement or the Assignment and Acceptance pursuant to
which it becomes a Lender in the case of each other Lender, and from time to time thereafter as
requested in writing by the Borrower (but only so long as such Lender remains lawfully able to do
so), shall provide each of the Agent and the Borrower with two original Internal Revenue Service
Forms W-8BEN or W-8ECI, as appropriate, or any successor or other form prescribed by the Internal
Revenue Service, certifying that such Lender is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or the Notes. If the form provided
by a Lender at the time such Lender 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 unless and until such Lender provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form; provided,
however, that, if at the date of the Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender assignor was entitled to payments under
subsection (a) in respect of United States withholding tax with respect to interest paid at such
date, then, to such extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender assignee on such date. If any form or document
referred to in this subsection (e) requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof by Internal
Revenue Service Form W-8BEN or W-8ECI, that the Lender reasonably considers to be confidential, the
Lender shall give notice thereof to the Borrower and shall not be obligated to include in such form
or document such confidential information.




          (f) For any period with respect to which a Lender has failed to provide the Borrower with the
appropriate form, certificate or other document described in Section 2.13(e) (other
than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring subsequent to the date on which a form, certificate or other document originally
was required to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to indemnification under
Section 2.13(a) or (c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender become subject to Taxes because of
its failure to deliver a form, certificate or other document required hereunder, the Borrower shall
take such steps as the Lender shall reasonably request to assist the Lender to recover such Taxes.




          (g) If the Lender claims any additional amounts payable pursuant to this Section 2.13, it
agrees to use reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to change




16









 







the jurisdiction of its Eurodollar Lending Office if the making of such a
change would avoid the need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of such Lender, be otherwise
disadvantageous to the Lender.




          SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Advances owing to it (other than pursuant to Section 2.10, 2.13 or 8.04(c)) in
excess of its ratable share of payments on account of the Advances obtained by all the Lenders,
such Lender shall forthwith purchase from the other Lenders such participations in the Advances
owing to them as shall be necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such Lender’s ratable share (according to
the proportion of (i) the amount of such Lender’s required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section 2.14 may, to the fullest
extent permitted by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct creditor of the Borrower
in the amount of such participation.




          SECTION 2.15. Evidence of Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. The Borrower agrees that upon notice by any Lender to the Borrower (with a copy of such
notice to the Agent) to the effect that a Note is required or appropriate in order for such Lender
to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing to, or to
be made by, such Lender, the Borrower shall promptly execute and deliver to such Lender a Note
payable to the order of such Lender in a principal amount up to the Commitment of such Lender.




          (b) The Register maintained by the Agent pursuant to Section 8.07(d) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iv) the amount of any sum received by the Agent from the Borrower
hereunder and each Lender’s share thereof.




          (c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of the Borrower under this Agreement.




          SECTION 2.16. Use of Proceeds. The proceeds of the Advances shall be available (and
the Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the
Borrower and its Subsidiaries, including commercial paper backstop, share repurchases and
acquisitions.





17








 





          SECTION 2.17. Increase in the Aggregate Commitments. (a) The Borrower may, at any
time but in any event not more than once in any calendar year prior to the Termination Date, by
notice to the Agent, request that the aggregate amount of the Commitment be increased by an amount
of $10,000,000 or an integral multiple thereof (each a “Commitment Increase”) to be
effective as of a date that is at least 90 days prior to the scheduled Termination Date then in
effect (the “Increase Date”) as specified in the related notice to the Agent;
provided, however that (i) in no event shall the aggregate amount of the
Commitments at any time exceed $1,500,000,000 and (ii) on the date of any request by the Borrower
for a Commitment Increase and on the related Increase Date, the applicable conditions set forth in
Article III shall be satisfied.




          (b) The Agent shall promptly notify the Lenders of a request by the Borrower for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) the proposed Increase Date and (iii) the date by which Lenders wishing to participate in the
Commitment Increase must commit to an increase in the amount of their respective Commitments (the
“Commitment Date”). Each Lender that is willing to participate in such requested
Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion, give
written notice to the Agent on or prior to the Commitment Date of the amount by which it is willing
to increase its Commitment. If the Lenders notify the Agent that they are willing to increase the
amount of their respective Commitments by an aggregate amount that exceeds the amount of the
requested Commitment Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between the Borrower and the
Agent, provided that no Lender shall be subject to a Commitment Increase in excess of the
amount by which it is willing to increase its Commitment as indicated in its notice to the Agent.
It is understood and agreed that no Lender shall have any obligation whatsoever to agree to any
increase in its Commitment.




          (c) Promptly following each Commitment Date, the Agent shall notify the Borrower as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion
of the requested Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Commitment of each such
Eligible Assignee shall be in an amount of $15,000,000 or more.




          (d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.17(b) (each such Eligible Assignee and
each Eligible Assignee that agrees to an extension of the Termination Date in accordance with
Section 2.18(c), an “Assuming Lender”) shall become a Lender party to this Agreement as of
such Increase Date and the Commitment of each Increasing Lender for such requested Commitment
Increase shall be so increased by such amount (or by the amount allocated to such Lender pursuant
to the last sentence of Section 2.17(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the following,
each dated such date:





     (i) (A) certified copies of resolutions of the Board of Directors of the Borrower or
the Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of counsel for the Borrower
(which may be in-house counsel), in substantially the form of Exhibit F hereto;




     (ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Borrower and the Agent (each an “Assumption Agreement”), duly
executed by such Eligible Assignee, the Agent and the Borrower; and




     (iii) confirmation from each Increasing Lender of the increase in the amount of its
Commitment in a writing satisfactory to the Borrower and the Agent.


On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.17(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrower, on or before 1:00 P.M. (New York City time), by
telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date and
shall record in the Register the relevant information with respect to each Increasing Lender and
each Assuming Lender on such date. Each Increasing Lender and each Assuming
Lender shall, before 2:00 P.M. (New York City time) on the Increase Date, make available for the
account of its





18









 







Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in
the case of such Assuming Lender, an amount equal to such Assuming Lender’s ratable portion of the
Borrowings then outstanding (calculated based on its Commitment as a percentage of the aggregate
Commitments outstanding after giving effect to the relevant Commitment Increase) and, in the case
of such Increasing Lender, an amount equal to the excess of (i) such Increasing Lender’s ratable
portion of the Borrowings then outstanding (calculated based on its Commitment as a percentage of
the aggregate Commitments outstanding after giving effect to the relevant Commitment Increase) over
(ii) such Increasing Lender’s ratable portion of the Borrowings then outstanding (calculated based
on its Commitment (without giving effect to the relevant Commitment Increase) as a percentage of
the aggregate Commitments (without giving effect to the relevant Commitment Increase). After the
Agent’s receipt of such funds from each such Increasing Lender and each such Assuming Lender, the
Agent will promptly thereafter cause to be distributed like funds to the other Lenders for the
account of their respective Applicable Lending Offices in an amount to each other Lender such that
the aggregate amount of the outstanding Advances owing to each Lender after giving effect to such
distribution equals such Lender’s ratable portion of the Borrowings then outstanding (calculated
based on its Commitment as a percentage of the aggregate Commitments outstanding after giving
effect to the relevant Commitment Increase).




          SECTION 2.18. Extension of Termination Date. (a) At least 30 days but not more than
45 days prior to any anniversary of the Effective Date, the Borrower, by written notice to the
Agent, may request an extension of the Termination Date in effect at such time by one year from its
then scheduled expiration. The Agent shall promptly notify each Lender of such request, and each
Lender shall in turn, in its sole discretion, not later than 20 days prior to such anniversary
date, notify the Borrower and the Agent in writing as to whether such Lender will consent to such
extension. If any Lender shall fail to notify the Agent and the Borrower in writing of its consent
to any such request for extension of the Termination Date at least 20 days prior to the applicable
anniversary date, such Lender shall be deemed to be a Non-Consenting Lender with respect to such
request. The Agent shall notify the Borrower not later than 15 days prior to the applicable
anniversary date of the decision of the Lenders regarding the Borrower’s request for an extension
of the Termination Date.




          (b) If all the Lenders consent in writing to any such request in accordance with subsection
(a) of this Section 2.18, the Termination Date in effect at such time shall, effective as at the
applicable anniversary date (the “Extension Date”), be extended for one year;
provided that on each Extension Date the applicable conditions set forth in Article III
shall be satisfied. If less than all of the Lenders consent in writing to any such request in
accordance with subsection (a) of this Section 2.18, the Termination Date in effect at such time
shall, effective as at the applicable Extension Date and subject to subsection (d) of this Section
2.18, be extended as to those Lenders that so consented (each a “Consenting Lender”) but
shall not be extended as to any other Lender (each a “Non-Consenting Lender”). To the
extent that the Termination Date is not extended as to any Lender pursuant to this Section 2.18 and
the Commitment of such Lender is not assumed in accordance with subsection (c) of this Section 2.18
on or prior to the applicable Extension Date, the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Termination Date without any further notice or
other action by the Borrower, such Lender or any other Person; provided that such
Non-Consenting Lender’s rights under Sections 2.10, 2.13 and 8.04, and its obligations under
Section 7.05, shall survive the Termination Date for such Lender as to matters occurring prior to
such date. It is understood and agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Borrower for any requested extension of the Termination Date.




          (c) If less than all of the Lenders consent to any such request pursuant to subsection (a) of
this Section 2.18, the Agent shall promptly so notify the Consenting Lenders, and each Consenting
Lender may, in its sole discretion, give written notice to the Agent not later than 10 days prior
to the Extension Date of the amount of the Non-Consenting Lenders’ Commitments for which it is
willing to accept an assignment. If the Consenting Lenders notify the Agent that they are willing
to accept assignments of Commitments in an aggregate amount that exceeds the amount of the
Commitments of the Non-Consenting Lenders, such Commitments shall be allocated among the Consenting
Lenders willing to accept such assignments in such amounts as are agreed between the Borrower and
the Agent, provided that no Lender shall be subject to an increase in its Commitment in
excess of the Commitment amount which it indicated it is willing to assume. If after giving effect
to the assignments of Commitments described above there remains any Commitments of Non-Consenting
Lenders, the Borrower may arrange for one or more Consenting Lenders or other Eligible Assignees as
Assuming Lenders to assume, effective as of the Extension Date, any Non-Consenting Lender’s
Commitment and all of the obligations of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the Commitment of
any such Assuming Lender as a result of such substitution shall in no event be less than
$15,000,000 unless the amount of the Commitment of such





19









 







Non-Consenting Lender is less than
$15,000,000, in which case such Assuming Lender shall assume all of such lesser amount; and
provided further that:





     (i) any such Consenting Lender or Assuming Lender shall have paid to such
Non-Consenting Lender (A) the aggregate principal amount of, and any interest accrued and
unpaid to the effective date of the assignment on, the outstanding Advances, if any, of such
Non-Consenting Lender plus (B) any accrued but unpaid facility fees owing to such
Non-Consenting Lender as of the effective date of such assignment;




     (ii) all additional costs reimbursements, expense reimbursements and indemnities
payable to such Non-Consenting Lender, and all other accrued and unpaid amounts owing to
such Non-Consenting Lender hereunder, as of the effective date of such assignment shall have
been paid to such Non-Consenting Lender; and




     (iii) with respect to any such Assuming Lender, the applicable processing and
recordation fee required under Section 8.07(a) for such assignment shall have been paid;


provided further that such Non-Consenting Lender’s rights under Sections 2.10, 2.13
and 8.04, and its obligations under Section 7.05, shall survive such substitution as to matters
occurring prior to the date of substitution. At least three Business Days prior to any Extension
Date, (A) each such Assuming Lender, if any, shall have delivered to the Borrower and the Agent an
Assumption Agreement, duly executed by such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Agent, (B) any such Consenting Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Agent as to the increase in the amount of its Commitment and
(C) each Non-Consenting Lender being replaced pursuant to this Section 2.18 shall have delivered to
the Agent any Note held by such Non-Consenting Lender. Upon the payment or prepayment of all
amounts referred to in clauses (i), (ii) and (iii) of the immediately preceding sentence, each such
Consenting Lender or Assuming Lender, as of the Extension Date, will be substituted for such
Non-Consenting Lender under this Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the consent of the other Lenders, and the
obligations of each such Non-Consenting Lender hereunder (other than its obligations under Section
7.05 as to matters occurring prior to the date of substitution) shall, by the provisions hereof, be
released and discharged.



              (d) If (after giving effect to any assignments or assumptions pursuant to subsection (c) of
this Section 2.18) Lenders having Commitments equal to at least 50% of the Commitments in effect
immediately prior to the Extension Date consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or otherwise) not later than one Business Day
prior to such Extension Date, the Agent shall so notify the Borrower, and, subject to the
satisfaction of the applicable conditions in Article III, the Termination Date then in effect, with
respect to each Consenting Lender and Assuming Lender therefor, shall be extended for the
additional one-year period as described in subsection (a) of this Section 2.18, and all references
in this Agreement, and in the Notes, if any, to the “Termination Date” shall, with respect
to each Consenting Lender and each Assuming Lender for such Extension Date, refer to the
Termination Date as so extended. Promptly following each Extension Date, the Agent shall notify
the Lenders (including, without limitation, each Assuming Lender) of the extension of the scheduled
Termination Date in effect immediately prior thereto and shall thereupon record in the Register the
relevant information with respect to each such Consenting Lender and each such Assuming Lender.




ARTICLE III




CONDITIONS TO EFFECTIVENESS AND LENDING




          SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01. Section 2.01 of
this Agreement shall become effective on and as of the first date (the “Effective Date”) on
which the following conditions precedent have been satisfied:




20









 









     (a) There shall have occurred no material adverse change in the properties, business,
profits or condition (financial or otherwise) of the Borrower or of the Borrower and its
Subsidiaries taken as a whole since October 29, 2006, except as disclosed in the Borrower’s
filings with the SEC or as disclosed in writing to the Lenders prior to the date hereof.




     (b) Except as set forth under the heading “Legal Proceedings” in the Borrower’s 2006
Form 10-K and other SEC filings filed by Borrower prior to the Effective Date, there shall
exist no action, suit or proceeding pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official (i) in which there is a reasonable
possibility of an adverse determination which would have a Material Adverse Effect, or (ii)
which in any manner draws into question the validity of this Agreement or the Note.




     (c) All governmental and third party consents and approvals necessary in connection
with the transactions contemplated hereby shall have been obtained (without the imposition
of any conditions that are not acceptable to the Lenders) and shall remain in effect, and no
law, regulation or provision in an existing agreement shall be applicable in the reasonable
judgment of the Lenders that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.




     (d) The Borrower shall have notified each Lender and the Agent in writing as to the
proposed Effective Date.




     (e) The Borrower shall have paid all accrued and invoiced fees and expenses of the
Agent and the Lenders (including the accrued fees and expenses of counsel to the Agent) as
agreed separately in writing by the parties to such agreement.




     (f) On the Effective Date, the following statements shall be true and the Agent shall
have received for the account of each Lender a certificate signed by a duly authorized
officer of the Borrower, dated the Effective Date, stating that:




     (i) The representations and warranties contained in Section 4.01 are correct on
and as of the Effective Date, and




     (ii) No event exists that constitutes a Default.




     (g) The Agent shall have received on or before the Effective Date the following, each
dated such day, in form and substance satisfactory to the Agent and (except for the Notes)
in sufficient copies for each Lender:




     (i) The Notes to the order of the Lenders to the extent requested by any Lender
pursuant to Section 2.15.




     (ii) Certified copies of the general resolutions of the Board of Directors of
the Borrower which authorize the Borrower to enter into this Agreement and the
Notes, and of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Agreement and the Notes.




     (iii) A certificate of the Secretary or an Assistant Secretary of the Borrower
certifying the names and true signatures of the officers of the Borrower authorized
to sign this Agreement and the Notes and the other documents to be delivered
hereunder.




     (iv) A favorable opinion of the Vice President, Legal Services of the Borrower,
substantially in the form of Exhibit D hereto and as to such other matters as any
Lender through the Agent may reasonably request.



21









 






     (v) A favorable opinion of Orrick,




     Herrington & Sutcliffe, LLP, counsel for the Borrower, substantially in the
form of Exhibit E hereto and as to such other matters as the Lender may reasonably
request.




     (vi) A favorable opinion of Shearman & Sterling LLP, counsel for the Agent, in
form and substance satisfactory to the Agent.




     (h) The Borrower shall have terminated the commitment of the lender and repaid or
prepaid all of the obligations under, the 364-Day Credit Agreement dated as of September 14,
2006 between the Borrower and Citicorp USA, Inc., and such lender hereby waives, upon
execution of this Agreement, any notice required by said Credit Agreement relating to the
termination of commitments thereunder.



          SECTION 3.02. Conditions Precedent to Each Borrowing, Commitment Increase and Extension
Date. The obligation of each Lender to make an Advance on the occasion of each Borrowing, each
Commitment Increase and each extension of Commitments pursuant to Section 2.18 shall be subject to
the conditions precedent that the Effective Date shall have occurred and on the date of such
Borrowing, the applicable Increase Date or the applicable Extension Date (a) the following
statements shall be true (and each of the giving of the applicable Notice of Borrowing, request for
Commitment Increase request for Commitment extension and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on
the date of such Borrowing, such Increase Date or such Extension Date such statements are true):





     (i) the representations and warranties contained in Section 4.01 (except, in the case
of Borrowings, the representations set forth in Section 4.01(d)(ii)) are correct on and as
of such date, before and after giving effect to such Borrowing, such Commitment Increase or
such Extension Date and to the application of the proceeds therefrom, as though made on and
as of such date, and




     (ii) no event has occurred and is continuing, or would result from such Borrowing, such
Commitment Increase or such Extension Date or from the application of the proceeds
therefrom, that constitutes a Default;


and (b) the Agent shall have received such other approvals, opinions or documents as any Lender
through the Agent may reasonably request.




          SECTION 3.03. Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES




          SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:




     (a) Corporate Existence and Power. Each of the Borrower and each Subsidiary:




     (i) is a corporation duly organized and validly existing under the laws of its
jurisdiction of incorporation, except, solely with respect to Subsidiaries, where
failure to be duly
organized and validly existing under the laws of the applicable jurisdiction of
incorporation would not in the aggregate have a Material Adverse Effect;



22









 






     (ii) has all requisite power and authority and all necessary licenses and
permits to own and operate its properties and to carry on its business as now
conducted and as presently proposed to be conducted, except where failures to have
such licenses and permits would not, in the aggregate, have a Material Adverse
Effect; and




     (iii) is duly licensed or qualified and is in good standing as a foreign
corporation in each jurisdiction wherein the nature of the business transacted by it
or the nature of the property owned or leased by it makes such licensing or
qualification necessary, except where failures to be so licensed, qualified or in
good standing would not, in the aggregate, have a Material Adverse Effect.




     (b) Corporate and Governmental Authorization; No Contravention. The execution,
delivery and performance by the Borrower of this Agreement and the Notes are within the
Borrower’s corporate powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under (i) the certificate of
incorporation or by-laws of the Borrower, (ii) any agreement that purports to affect the
Borrower’s ability to borrow money or the Borrower’s obligations under this Agreement or the
Notes, or any judgment, injunction, order or decree binding upon the Borrower or any of its
Subsidiaries, (iii) any provision of material applicable law or regulation or result in the
creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries
not otherwise permitted by Section 5.02(a).




     (c) 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 a valid and binding obligation of the Borrower, in
each case enforceable in accordance with its terms, except as limited by (i) bankruptcy,
insolvency or similar laws affecting creditors’ rights generally and (ii) general principles
of equity.




     (d) Financial Information. (i) The consolidated balance sheet of the Borrower
and its Subsidiaries as of October 29, 2006, and the related consolidated statements of
operations and cash flows for the fiscal year then ended, reported on by KPMG LLP and set
forth in the Borrower’s 2006 Form 10-K (or an exhibit thereto), a copy of which has been
obtained by each of the Lenders, fairly present, in conformity with generally accepted
accounting principles, the consolidated financial position of the Borrower and its
Subsidiaries as of such date and their consolidated results of operations and cash flows for
such fiscal year.




     (ii) There has been no material adverse change since October 29, 2006, in the business,
financial position or results of operations of the Borrower and its Subsidiaries, considered
as a whole, except as disclosed in the Borrower’s filings with the SEC prior to the
Effective Date.




     (e) Litigation. Except as set forth under the heading “Legal Proceedings” in
the Borrower’s 2006 Form 10-K and as disclosed in any SEC filings of the Borrower
made prior to the Effective Date, and then only to the extent that there have been no
adverse developments with respect to such “Legal Proceedings” since such Form 10-K or in
such SEC filings, there is no action, suit or proceeding pending against, or to the
knowledge of the Borrower any investigation, action, suit or proceeding threatened against
or affecting, the Borrower or any of its Subsidiaries before any court or arbitrator or any
governmental body, agency or official (i) in which there is a reasonable possibility of an
adverse determination which would have a Material Adverse Effect, or (ii) which in any
manner draws into question the validity of this Agreement or the Notes.




     (f) Compliance with ERISA. 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 material respects with the presently
applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group has (i)
sought a waiver of the minimum funding standard under Section 412 of the 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



23









 






Benefit Arrangement, or made any amendment to any
Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security under ERISA or the Internal Revenue Code which
will violate Section 5.02(a) hereof or (iii) incurred any unpaid liability in excess of
$150,000,000 under Title IV of ERISA other than a liability to the PBGC for premiums under
Section 4007 of ERISA.




     (g) Environmental Matters. The Borrower has a process of conducting periodic
internal reviews relating to compliance by the Borrower and its Subsidiaries with
Environmental Laws and liabilities thereunder. On the basis of such reviews and other
business processes, except as set forth in the Borrower’s 2006 Form 10-K and as disclosed in
any SEC filings of the Borrower prior to the date hereof, nothing has come to the attention
of the Borrower which would lead it to believe that costs associated with compliance with
Environmental Laws or liabilities thereunder (including, without limitation, any capital or
operating expenses required for cleanup, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) would have a Material Adverse
Effect.




     (h) Taxes. All federal and state income tax returns required to be filed by
the Borrower or any Subsidiary in any jurisdiction have, in fact, been filed and all other
tax returns required to be filed in any other jurisdiction have, in fact, been filed, except
where the failure to so file in such jurisdictions (other than in connection with federal or
state income tax returns) would not have a Material Adverse Effect, and all taxes,
assessments, fees and other governmental charges upon the Borrower or any Subsidiary or upon
any of their respective properties, income or franchises, which are shown to be due and
payable in such returns, have been paid. For all taxable years ending on or before October
2000, the Federal income tax liability of the Borrower and its Subsidiaries has been
satisfied and either the period of limitations on assessment of additional Federal income
tax has expired or the Borrower and its Subsidiaries have entered into an agreement with the
Internal Revenue Service closing conclusively the total tax liability for the taxable year.
The provisions for taxes on the books of the Borrower and each Subsidiary are adequate for
all open years, and for its current fiscal period.




     (i) No Regulatory Restrictions on Advances. The Borrower is not (i) primarily
engaged in a business or businesses of investing, reinvesting, owning, holding or trading in
securities; or (ii) otherwise subject to any regulatory scheme applicable to it which
restricts its ability to incur debt under this Agreement.




     (j) Full Disclosure. All written information heretofore furnished by the
Borrower to the Agent and the Lenders for purposes of or in connection with this Agreement
or any transaction contemplated hereby does not, and all such written information hereafter
furnished by the Borrower to the Agent and the Lenders, taken as a whole and including any
filings made with the SEC, will not, contain any untrue statement of a material fact or in
the aggregate omit a material fact necessary to make the statements therein not misleading
on the date as of which such information is stated or certified.



ARTICLE V




COVENANTS OF THE BORROWER




          SECTION 5.01. Affirmative Covenants. So long as any Advance shall remain unpaid or
any Lender shall have any Commitment hereunder, the Borrower will:





     (a) Compliance with Laws, Etc. Comply, and cause each Subsidiary to comply, in
all material 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 (A) where the necessity of
compliance therewith is contested in good faith by
appropriate proceedings or (B) where the violation of which, individually or in the
aggregate, would not reasonably be expected to (x) result in a Material Adverse Effect or
(y) if such violation is not remedied, result in any Lien not permitted under Section
5.02(a).



24









 






     (b) Payment of Obligations. Pay and discharge, and cause each Subsidiary to
pay and discharge, at or before maturity, all their respective material obligations and
liabilities, including, without limitation, tax liabilities, except where the same may be
contested in good faith by appropriate proceedings, and maintain, and cause each Subsidiary
to maintain, in accordance with GAAP, appropriate reserves for the accrual of any of the
same.




     (c) Maintenance of Property; Insurance. (i) Keep, and cause each Subsidiary
to keep, all property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted; provided that nothing in this Section 5.01(c)(i)
shall prevent the abandonment of any property if such abandonment does not result in any
Default hereunder and the Borrower determines, in the exercise of its reasonable business
judgment, that such abandonment is in the interest of the Borrower.




               (ii) Maintain, and cause each Subsidiary to maintain, insurance coverage by financially
sound and reputable insurers and in such forms and amounts and against such risks as are
customary for corporations of established reputation engaged in the same or a similar
business and owning and operating similar properties in similar locations.




     (d) Preservation of Corporate Existence, Etc. Preserve, renew and keep in full
force and effect, and cause each Subsidiary to preserve, renew and keep in full force and
effect, their respective corporate existence and their respective rights, privileges and
franchises, except to the extent that failures to maintain their respective rights,
privileges and franchises could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect; provided that nothing in this Section 5.01(d) shall
prohibit (A) the merger of a Subsidiary into the Borrower or the merger or consolidation of
a Subsidiary with or into another Person if the corporation surviving such consolidation or
merger is a Subsidiary and if, in each case, after giving effect thereto, no Default shall
have occurred and be continuing or (B) the termination of the corporate existence of any
Subsidiary if such termination does not result in any Default hereunder and the Borrower
determines, in the exercise of its reasonable business judgment, that such termination is in
the interest of the Borrower.




     (e) Visitation Rights. Permit the Agent and the Lenders (i) to visit and
inspect during normal business hours (at the expense of such Lender unless an Event of
Default has occurred and is continuing), under the Borrower’s guidance and upon reasonable
prior notice if a Default shall have occurred and be continuing or, so long as no Default
shall have occurred and be continuing, upon not less than three Business Days prior notice,
any of the properties of the Borrower or any Subsidiary, (ii) to examine (to the extent
material to ascertaining compliance with the terms and provisions hereof or to the extent
reasonably related to the financial condition or material operations of the Borrower or a
Subsidiary) all of their books of account, records, reports and other papers, and to make
copies and extracts therefrom (other than attorney-client privileged and attorney
work-product documents) and (iii) to the extent material to ascertaining compliance with the
terms and provisions hereof or to the extent reasonably related to the financial condition
or material operations of the Borrower or a Subsidiary, to discuss their respective affairs,
finances and accounts with their respective officers, employees (who are managers or
officers), and independent public accountants and by this provision the Borrower authorizes
said accountants to discuss with the Agent and the Lenders the finances and affairs of the
Borrower and its Subsidiaries; provided that the Agent or the applicable Lender
shall have given prior written notice to the Borrower of its intention to discuss such
finances and affairs with such accountants and have given the Borrower the opportunity to
participate in such discussions, all at such reasonable times and as often as may be
reasonably requested. Notwithstanding the above, the Borrower may, if and to the extent
required by applicable law, deny such access or information to the Agent and the Lenders.




     (f) Keeping of Books. Keep, and cause each of its Subsidiaries 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 in accordance with generally accepted
accounting principles in effect from time to time.



25









 






     (g) Reporting Requirements. Deliver in writing or by email to the Agent
(except as stated in clauses (i), (ii), (iv), (vi) and (vii) below and Section 8.02(b)) or
make available electronically:




     (i) as soon as available and in any event within 45 days after the end of each
quarterly fiscal period (except the last) of each fiscal year, copies of:




     (A) a consolidated balance sheet of the Borrower and its Subsidiaries
as of the close of such quarterly fiscal period, setting forth in
comparative form the consolidated figures as of the close of the fiscal year
then most recently ended,




     (B) consolidated statements of operations of the Borrower and its
Subsidiaries for such quarterly fiscal period and for the portion of the
fiscal year ending with such quarterly fiscal period, in each case setting
forth in comparative form the consolidated figures for the corresponding
period and portion of the preceding fiscal year and




     (C) a consolidated statement of cash flows of the Borrower and its
Subsidiaries for the portion of the fiscal year ending with such quarterly
fiscal period, setting forth in comparative form the consolidated figures
for the corresponding period of the preceding fiscal year,




it being agreed that (1) delivery of such financial statements shall be deemed to be
a representation by the Borrower that such financial statements fairly present, in
conformity with GAAP, the consolidated financial position of the Borrower and its
Subsidiaries as of the close of such quarterly fiscal period and their consolidated
results of operations and cash flows for the portion of the fiscal year ending at
the end of such quarterly fiscal period (subject to normal year-end adjustments) and
(2) the Borrower may satisfy the requirements of this Section 5.01(g)(i) by filing
its Quarterly Report on Form 10-Q with the SEC; provided that such Form 10-Q
satisfies the foregoing requirements of this paragraph (i);




     (ii) as soon as available and in any event within 90 days after the close of
each fiscal year of the Borrower, copies of:




     (A) a consolidated balance sheet of the Borrower and its Subsidiaries
as of the close of such fiscal year, and




     (B) consolidated statements of operations and cash flows of the
Borrower and its Subsidiaries for such fiscal year,




in each case setting forth in comparative form the consolidated figures for the two
preceding fiscal years, all in reasonable detail and accompanied by a report thereon
of a firm of independent public accountants of recognized national standing selected
by the Borrower to the effect that the consolidated financial statements present
fairly, in all material respects, the consolidated financial position of the
Borrower and its Subsidiaries as of the end of the fiscal year being reported on and
their consolidated results of operations and cash flows for said year in conformity
with GAAP and that the examination of such accountants in connection with such
financial statements has been conducted in accordance with generally accepted
auditing standards, it being agreed that the Borrower may satisfy the requirements
of this Section 5.01(g)(ii) by filing its Annual Report on Form 10-K with the SEC;
provided that such Form 10-K (including the exhibits filed therewith)
satisfies the requirements of this paragraph (ii);




     (iii) promptly upon receipt thereof, one copy of each interim or special audit
made by independent accountants of the books of the Borrower or any Subsidiary, in
all cases, material to the financial condition or operations of the Borrower or of
the Borrower and its Subsidiaries taken as a whole, and any management letter
received from such accountants for the Borrower or



26









 






such Subsidiary that is material
to the financial condition or operations of the Borrower or of the Borrower and its
Subsidiaries taken a s a whole;




     (iv) promptly upon their becoming available, (A) one copy of each financial
statement, report, notice or proxy statement sent by the Borrower to stockholders
generally and of each regular or periodic report, and any registration statement or
prospectus (other than those on Form S-8) filed by the Borrower or any Subsidiary
with any securities exchange or the SEC or any successor agency; provided
that the filing of such document with the SEC shall satisfy such requirement, and
(B) one copy of any orders in any proceedings to which the Borrower or any of its
Subsidiaries is a party, issued by any governmental agency, Federal or state, having
jurisdiction over the Borrower or any of its Subsidiaries, which orders are material
to the financial condition or operations of the Borrower or the Borrower and its
Subsidiaries taken as a whole;




     (v) promptly upon the occurrence thereof, written notice of (A) a Reportable
Event with respect to any Plan; (B) the institution of any steps by the Borrower,
any ERISA Affiliate, the PBGC or any other person to terminate any Plan if such
termination were to result in a liability of the Borrower or any Subsidiary to the
PBGC in an amount which could materially and adversely affect the condition,
financial or otherwise, of the Borrower or of the Borrower and its Subsidiaries
taken as a whole; (C) the institution of any steps by the Borrower or any ERISA
Affiliate to withdraw from any Plan or any Multiemployer Plan if such withdrawal
would result in a liability of the Borrower or any Subsidiary in an amount which
could materially and adversely affect the condition, financial or otherwise, of the
Borrower or of the Borrower and its Subsidiaries taken as a whole; (D) a “prohibited
transaction” within the meaning of Section 406 of ERISA (which has not been exempted
under or pursuant to Section 408 of ERISA) in connection with any Plan if such
“prohibited transaction” would result in a liability of the Borrower or any
Subsidiary in an amount which could materially and adversely affect the condition,
financial or otherwise, of the Borrower or of the Borrower and its Subsidiaries
taken as a whole; (E) any increase in the contingent liability of the Borrower or
any Subsidiary with respect to any post-retirement welfare liability in an amount
that could have a Material Adverse Effect; or (F) the taking of any action by, or
the threat in writing of the taking of any action by, the Internal Revenue Service,
the Department of Labor or the PBGC with respect to any of the foregoing;




     (vi) within the periods provided in paragraphs (i) and (ii) above, a
certificate of an authorized financial officer of the Borrower stating that such
officer has reviewed the provisions of this Agreement and (A) setting forth the
information and computations (in sufficient detail) required in order to establish
whether the Borrower was in compliance with the requirements of Sections 5.02(a) and
5.03 at the end of the period covered by the financial statements then being
furnished and (B) stating whether there existed as of the date of such financial
statements and whether, to the best of such officer’s knowledge, there exists on the
date of the certificate or existed at any time during the period covered by such
financial statements any Default and, if any such condition or event exists on the
date of the certificate, specifying the nature and period of existence thereof and
the action the Borrower is taking and proposes to take with respect thereto;
provided, that the email of such certificate in accordance with Section 8.02(b)
shall satisfy the delivery requirements of this paragraph;




     (vii) within five 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 and proposes to take
with respect thereto;




     (viii) promptly upon any change in the Public Debt Rating, a notice reporting
such change and stating the date on which such change was publicly announced by the
relevant rating agency; and



27









 






     (ix) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as any Lender through the
Agent may reasonably request.



          SECTION 5.02. Negative Covenants. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will not:





     (a) Liens, Etc. Create, incur or suffer to exist, or permit any of its
Subsidiaries to create, incur or suffer to exist, any Lien on or with respect to any of its
properties, whether now owned or hereafter acquired, or upon any income or profits
therefrom, or acquire or agree to acquire, or permit any Subsidiary to acquire, any property
or assets upon conditional sales agreements or other title retention devices, except:




     (i) Liens for property taxes and assessments or governmental charges or levies
and Liens securing claims or demands of mechanics and materialmen, provided that
payment thereof is not at the time required by Section 5.01(a) or (b);




     (ii) any Lien of or resulting from any judgment or award; provided that either
(A) the amount secured thereby does not exceed $150,000,000 or (B) if the amount
secured thereby does exceed $150,000,000, the time for the appeal or petition for
rehearing of such judgment or award shall not have expired, or the Borrower or a
Subsidiary shall in good faith be prosecuting an appeal or proceeding for a review
thereof, and execution of such judgment or award shall be stayed pending such appeal
or proceeding for review;




     (iii) Liens incidental to the conduct of business conducted by the Borrower and
its Subsidiaries in the ordinary course of business or the ownership of properties
and assets owned by the Borrower and its Subsidiaries (including Liens in connection
with worker’s compensation, unemployment insurance and other like laws,
warehousemen’s and attorneys’ liens and statutory landlords’ liens) and Liens to
secure the performance of bids, tenders or trade contracts, or to secure statutory
obligations, surety or appeal bonds or other Liens of like general nature incurred
in the ordinary course of business of the Borrower and its Subsidiaries and not in
connection with the borrowing of money, provided in each case, the obligation
secured is not overdue or, if overdue, is being contested in good faith by
appropriate actions or proceedings;




     (iv) survey exceptions or encumbrances, encroachments, easements or
reservations, or rights of others for rights-of-way, utilities and other similar
purposes, zoning restrictions, declarations of covenants, conditions and
restrictions, other title exceptions or other restrictions as to the use of real
properties, which are necessary or appropriate in the good faith judgment of the
Borrower for the conduct of the business of the Borrower and its Subsidiaries and
which, individually or in the aggregate, do not in any event materially impair their
use in the operation of the business of the Borrower or of the Borrower and its
Subsidiaries taken as a whole;




     (v) Liens securing Indebtedness of a Subsidiary to the Borrower or to another
Subsidiary;




     (vi) Liens existing as of the Effective Date and reflected in Schedule 5.02(a)
hereto, including any renewals, extensions or replacements of any such Lien,
provided that:




     (A) no additional property is encumbered in connection with any such
renewal, extension or replacement of any such Lien; and




     (B) there is no increase in the aggregate principal amount of Debt
secured by any such Lien from that which was outstanding or permitted to be
outstanding with respect to such Lien as of the Effective Date or the date
of such renewal, extension or replacement, whichever is greater;



28









 






     (vii) Liens incurred after the Effective Date given to secure the payment of
the purchase price and/or other direct costs incurred in connection with the
acquisition, construction, improvement or rehabilitation of assets including Liens
incurred by the Borrower or any Subsidiary securing Debt incurred in connection with
industrial development bond and pollution control financings, including Liens
existing on such assets at the time of acquisition thereof or at the time of
acquisition by the Borrower or a Subsidiary of any business entity (including a
Subsidiary) then owning such assets, whether or not such existing Liens were given
to secure the payment of the purchase price of the assets to which they attach,
provided that (A) except in the case of Liens existing on assets at the time of
acquisition of a Subsidiary then owning such assets, the Lien shall be created
within twelve (12) months of the later of the acquisition of, or the completion of
the construction or improvement in respect of, such assets and shall attach solely
to the assets acquired, purchased, or financed, or (B) except in the case of Liens
existing on assets at the time of acquisition of a Subsidiary then owning such
assets or Liens in connection with industrial development bond or pollution control
financings, at the time of the incurrence of such Lien, the aggregate amount
remaining unpaid on all Debt secured by Liens on such assets whether or not assumed
by the Borrower or a Subsidiary shall not exceed an amount equal to 75% of the
lesser of the total purchase price or fair market value, at the time such Debt is
incurred, of such assets (as determined in good faith by the Board of Directors of
the Borrower);




     (viii) Liens arising from the sale or transfer of accounts receivable and notes
of the Borrower and its Subsidiaries, provided that the Borrower and its
Subsidiaries shall receive adequate consideration therefor;




     (ix) Liens on notes or accounts receivable sold or transferred in a transaction
which is accounted for as a true sale under GAAP;




     (x) Liens securing Debt, to the extent that such Liens are not otherwise
permitted by this Section 5.02(a), provided that immediately after giving effect to
the incurrence of any such Lien, the sum of the aggregate principal amount of all
outstanding Debt secured by Liens permitted solely by reason of this Section
5.02(a)(x) shall not exceed the higher of (A) 15% of Consolidated Net Tangible
Assets and (B) $150,000,000; and




     (xi) Liens incurred in connection with any renewals, extensions or refundings
of any Debt secured by Liens described in Sections 5.02(a)(vii), (viii), (ix) or
(x), provided that there is no increase in the aggregate principal amount of Debt
secured thereby and no additional property is encumbered.




In the event that any property of the Borrower or its Subsidiaries is subjected to a lien in
violation of this Section 5.02(a), but no other provision of this Agreement (the
Indebtedness secured by such lien being referred to as “Prohibited Secured
Indebtedness”), such violation shall not constitute an Event of Default hereunder if the
Borrower, substantially simultaneously with the incurrence of such lien, makes or causes to
be made a provision whereby the Advances will be secured equally and ratably with all
Prohibited Secured Indebtedness and delivers to the Agent and the Lenders an opinion to that
effect, and, in any case, the Advances shall have the benefit, to the full extent that, and
with such priority as, the Lenders may be entitled to under applicable law, of an equitable
lien to secure the Advances on such property of the Borrower or its Subsidiaries that
secures Prohibited Secured Indebtedness. The opinion referred to in the preceding sentence
shall be addressed to the Agent and the Lenders, shall contain such qualifications and
limitations as are reasonably acceptable to the Agent and the Required Lenders and shall be
delivered by counsel of nationally recognized standing selected by the Borrower and
satisfactory to the Agent and the Required Lenders. Such counsel shall be deemed to be
satisfactory to the Agent and the Required Lenders unless, during the 15 day period after
the Agent has received written notice identifying such counsel, the Agent shall have
objected to such selection in writing to the Borrower.




               Notwithstanding any of the foregoing provisions of this Section 5.02(a) including,
without limitation, the terms and provisions of the preceding paragraph of this Section
5.02(a), the Borrower shall not, and shall not permit any Subsidiary to, create or incur, or
suffer to be incurred or to exist, any Lien (other than Liens described in Section
5.02(a)(i) through (iv), inclusive) upon any land,



29









 






property or buildings (or any interest
therein) described as Special Unencumbered Property in Schedule 5.02(a)(xii) hereto.




     (b) Consolidations, Mergers and Sales of Assets. Consolidate or merge with or
into any other Person or sell, lease or otherwise transfer, directly or indirectly, all or
substantially all of its assets to any other Person; provided that the Borrower may
merge with another Person if immediately after giving effect to such merger (x) no Default
shall exist, and (y) the Borrower is the surviving entity.




     (c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except as required
or permitted by GAAP.




     (d) Change in Nature of Business. Engage, or permit any of its Subsidiaries to
engage, in any business if, as a result, the primary business, taken on a consolidated
basis, which would then be engaged in by the Borrower and its Subsidiaries would be
substantially changed from the business of the manufacture of capital equipment for the
electronics, solar and clean energy industries, and related services.




     (e) Use of Proceeds. Use proceeds of the Advances made under this Agreement,
directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of
buying or carrying Margin Stock that would result in a violation of Regulation U of the
Board of Governors of the Federal Reserve System, as in effect from time to time.




     (f) Transactions with Affiliates. Enter into or be a party to, or permit any
Subsidiary to enter into or be a party to, any transaction or arrangement with any Affiliate
(including, without limitation, the purchase from, sale to or exchange of property with, or
the rendering of any service by or for, any Affiliate), except in the ordinary course of and
pursuant to the reasonable requirements of the Borrower’s or such Subsidiary’s (as the case
may be) business and upon fair and reasonable terms or on terms no less favorable to the
Borrower or such Subsidiary than would be obtained in a comparable arm’s-length transaction
with a Person other than an Affiliate, except where failure to do so would not have a
Material Adverse Effect.



          SECTION 5.03. Financial Covenant. So long as any Advance shall remain unpaid or any
Lender shall have any Commitment hereunder, the Borrower will maintain as of the last day of each
fiscal quarter, determined on the basis of the most recently completed four consecutive fiscal
quarters ending on such day, a Consolidated Leverage Ratio of not greater than ***.




ARTICLE VI




EVENTS OF DEFAULT




          SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:





     (a) the Borrower shall fail to pay any principal of any Advance when due or shall fail
to pay any interest, fee, or other amount payable hereunder within three Business Days or
five days after it becomes due, whichever is later;





 




			
	***  INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.




30









 











     (b) any representation, warranty, certification or statement made by the Borrower in
this Agreement or in any certificate, financial statement or other document delivered
pursuant to this Agreement shall prove to have been incorrect in any material respect when
made (or deemed made);




     (c) the Borrower shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed (other than clause (a)
above) if such failure shall remain unremedied for 30 days after written notice thereof
shall have been given to the Borrower by the Agent or any Lender;




     (d) the Borrower or any Subsidiary shall fail to make any payment in respect of any
Material Financial Obligations when due or within any applicable grace period;




     (e) any event or condition shall occur which results in the acceleration of the
maturity of any Material Debt or enables (after the lapse of any cure period and the receipt
of any required notices) the holder of such Debt or any Person acting on such holder’s
behalf to accelerate the maturity thereof;




     (f) the Borrower or any 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 general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due, or shall admit in
writing its inability to pay its debts generally, or shall take any corporate action to
authorize any of the foregoing; provided that no event otherwise constituting an Event of
Default under this clause (f) shall be an Event of Default if the total assets of all
entities with respect to which an event has occurred which would otherwise have constituted
an Event of Default under this clause (f) or clause (g) do not exceed $150,000,000 in the
aggregate;




     (g) an involuntary case or other proceeding shall be commenced against the Borrower or
any 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 or any Subsidiary under the federal bankruptcy
laws as now or hereafter in effect; provided that no event otherwise constituting an Event
of Default under this clause (g) shall be an Event of Default if the total assets of all
entities with respect to which an event has occurred which would otherwise have constituted
an Event of Default under clause (f) or this clause (g) do not exceed $150,000,000 in the
aggregate;




     (h) any ERISA Affiliate shall fail to pay when due (or in the case of an ERISA
Affiliate acquired by the Borrower or a Subsidiary after the due date thereof, within 30
days after such ERISA Affiliate is so acquired) an amount or amounts aggregating in excess
of $150,000,000 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 ERISA
Affiliate, 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 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 ERISA Affiliates
to incur a current payment obligation in excess of $150,000,000;




     (i) final judgments or orders for the payment of money in excess of $150,000,000 in the
aggregate (excluding amounts with respect to which a financially sound and reputable insurer
has admitted liability as provided below) shall be rendered against the Borrower or any
Subsidiary and such judgments or orders shall continue unsatisfied, unbonded, unvacated or
unstayed for a period of 60 consecutive days;



31









 





provided, however, that any such judgment or order shall not be an Event of Default
under this Section 6.01(i) if and for so long as and to the extent that (i) the amount of
such judgment or order is covered (subject to deductibles) by a valid and binding policy of
insurance between the defendant and the insurer or insurers covering payment thereof, (ii)
such insurer shall be rated, or , if more than one insurer, at least 90% of such insurers as
measured by the amount of risk insured shall be rated, at least “A-“ by A.M. Best Company or
its successor or successors, and (iii) such insurer(s) has been notified of, and has not
refused the claim made for payment of, the amount of such judgment or order; or




     (j) either (i) any person or group of persons (within the meaning of Section 13 or 14
of the Exchange Act) shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of 30% or more of the outstanding shares of
Voting Stock of the Borrower; or (ii) during any period of 12 consecutive calendar months,
commencing before or after the date of this Agreement, individuals who were directors of the
Borrower on the first day of such period (the “Initial Directors”) shall cease for any
reason to constitute a majority of the board of directors of the Borrower unless the Persons
replacing such individuals were nominated or elected by a majority of the directors (x) who
were Initial Directors at the time of such nomination or election and/or (y) who were
nominated or elected by a majority of directors who were Initial Directors at the time of
such nomination or election;


then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Borrower, declare the obligation of each Lender to make Advances
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this Agreement to be forthwith due and
payable, whereupon the Advances, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided, however, that in
the case of any of the Events of Default specified in clause (f) or (g) above with respect to the
Borrower, (A) the obligation of each Lender to make Advances shall be automatically terminated and
(B) the Advances, all such interest and all such amount shall automatically, without any notice to
the Borrower or any other act by the Agent or any Lender, become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.




ARTICLE VII




THE AGENT




          SECTION 7.01. Authorization and Action. Each Lender hereby appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such powers and discretion
under this Agreement as are delegated to the Agent by the terms hereof, together with such powers
and discretion as are reasonably incidental thereto. As to any matters not expressly provided for
by this Agreement (including, without limitation, enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be binding upon all
Lenders and all holders of Notes; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that is contrary to
this Agreement or applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement.




          SECTION 7.02. Agent’s Reliance, Etc. Neither the Agent nor any of its directors,
officers, agents or employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with this Agreement, except for its or their own gross negligence or
willful misconduct. Without limitation of the generality of the foregoing, the Agent: (i) may
treat the Lender that made any Advance as the holder of the Debt resulting therefrom until the
Agent receives and accepts an Assumption Agreement entered into by an Assuming Lender as provided
in Section 2.17 or 2.18, as the case may be, or an Assignment and Acceptance entered into by such
Lender, as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may
consult with legal counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or
representation to any Lender and shall not be responsible to any Lender for any statements,
warranties or representations (whether written or oral) made in or in connection





32









 







with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the performance,
observance or satisfaction of any of the terms, covenants or conditions of this Agreement on the
part of the Borrower or the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower; (v) shall not be responsible to any Lender for
the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopier or telegram) believed by it to be genuine
and signed or sent by the proper party or parties.




          SECTION 7.03. CUSA and Affiliates. With respect to its Commitment, the Advances made
by it and the Note issued to it, CUSA shall have the same rights and powers under this Agreement as
any other Lender and may exercise the same as though it were not the Agent; and the term “Lender”
or “Lenders” shall, unless otherwise expressly indicated, include CUSA in its individual capacity.
CUSA and its Affiliates may accept deposits from, lend money to, act as trustee under indentures
of, accept investment banking engagements from and generally engage in any kind of business with,
the Borrower, any of its Subsidiaries and any Person who may do business with or own securities of
the Borrower or any such Subsidiary, all as if CUSA were not the Agent and without any duty to
account therefor to the Lenders. The Agent shall have no duty to disclose any information obtained
or received by it or any of its Affiliates relating to the Borrower or any of its Subsidiaries to
the extent such information was obtained or received in any capacity other than as Agent. In the
event that CUSA or any of its Affiliates shall be or become an indenture trustee under the Trust
Indenture Act of 1939 (as amended, the “Trust Indenture Act”) in respect of any securities
issued or guaranteed by the Borrower, the parties hereto acknowledge and agree that any payment or
property received in satisfaction of or in respect of any obligation of the Borrower hereunder or
under any other Loan Document by or on behalf of CUSA in its capacity as the Agent for the benefit
of any Lender under this Agreement or any Note (other than CUSA or an Affiliate of CUSA) and which
is applied in accordance with this Agreement shall be deemed to be exempt from the requirements of
Section 311 of the Trust Indenture Act pursuant to Section 311(b)(3) of the Trust Indenture Act.




          SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the Agent or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this Agreement.




          SECTION 7.05. Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed by the Borrower), ratably according to the respective principal amounts of
the Advances then owed to each of them (or if no Advances are at the time outstanding, ratably
according to the respective amounts of their Commitments), from and against any and all
liabilities, losses, damages, expenses or disbursements of any kind or nature whatsoever that may
be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of
this Agreement or any action taken or omitted by the Agent under this Agreement (collectively, the
“Indemnified Costs”), provided that no Lender shall be liable for any portion of
the Indemnified Costs resulting from the Agent’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a third party.




          SECTION 7.06. Successor Agent. The Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower and may be removed at any time with or without cause
by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the
right to appoint a successor Agent with the consent, so long as no Default has occurred and is
continuing, of the Borrower (which consent shall not be unreasonably withheld or delayed). If no
successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the
retiring Agent’s giving of notice of resignation or the Required Lenders’ removal of the
retiring Agent, then the retiring Agent may, on behalf of the





33









 







Lenders, appoint a successor Agent,
which shall be a commercial bank organized under the laws of the United States of America or of any
State thereof and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, discretion, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent’s resignation or removal hereunder as
Agent, the provisions of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.




          SECTION 7.07. Other Agents. Each Lender hereby acknowledges that neither the
syndication agent, the documentation agents nor any other Lender designated as any “Agent” on the
signature pages hereof has any liability hereunder other than in its capacity as a Lender.




ARTICLE VIII




MISCELLANEOUS




          SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by the Borrower therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Borrower and the Required
Lenders, and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Section 3.01, (b) increase the Commitments of the Lenders
other than as provided in Section 2.17, (c) reduce the principal of, or interest on, the Advances
or any fees or other amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Advances or any fees or other amounts payable hereunder other
than as provided in Section 2.18, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder or (f) amend this Section 8.01; and
provided further that no amendment, waiver or consent shall, unless in writing and
signed by the Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Agent under this Agreement or any Note.




          SECTION 8.02. Notices, Etc. (a) Except to the extent set forth in Section 8.02(b)
and in the proviso to this Section 8.02(a), all notices and other communications provided for
hereunder shall be in writing (including telecopier communication) and mailed, telecopied or
delivered, if to the Borrower, at its address at 3050 Bowers Avenue, Santa Clara, California 95054,
Attention: Robert Friess, Vice President, Treasurer; Telecopier: 408-986-7825; email:
Robert_Friess@amat.com; provided, that if such notice is to be delivered pursuant to Section 6.01,
8.05, 8.01 or 8.07, then such notice shall be delivered by mail or express delivery (and not
delivered electronically or by telecopy) at the address above to the Attention of: Robert Friess,
Vice President, Treasurer (or his successor) and Joseph Sweeney, Group Vice President, Legal
Affairs and Intellectual Property (or his successor), or at such other address as shall be
designated by Borrower in a written notice to the other parties; and if to the Agent, at its
address at Two Penns Way, New Castle, Delaware 19720, Attention: Bank Loan Syndications Department;
or at such other address as shall be designated by the Agent in a written notice to the other
parties and, as to each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Agent, provided that materials required to be
delivered pursuant to Sections 5.01(g)(vi) and (vii) shall be delivered as specified in Section
8.02(b) or as otherwise specified to the Borrower by the Agent from time to time. All such notices
and communications shall, when mailed, telecopied or e-mailed, be effective when deposited in the
mails, telecopied or confirmed by e-mail, respectively, except that notices and communications to
the Agent pursuant to Article II, III or VII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of any provision of
this Agreement or the Notes or of any Exhibit hereto to be executed and delivered hereunder shall
be effective as delivery of a manually executed counterpart thereof.




          (b) So long as CUSA or any of its Affiliates is the Agent, the Borrower hereby agrees that,
unless otherwise requested by the Agent, it will provide to the Agent all information, documents
and other materials that it is obligated to furnish to the Agent pursuant to this Agreement,
including, without limitation, all notices,







34









 







financial statements, financial and other reports,
certificates and other required information materials, but excluding any such communication that
(i) relates to a request for an amendment or for a new, or a conversion of an existing, borrowing
or other extension of credit (including any election of an interest rate or interest period
relating thereto), (ii) relates to the payment of any principal or other amount due under this
Agreement prior to the scheduled date therefor, (iii) provides notice of any default or event of
default under this Agreement, (iv) is required to be delivered to satisfy any condition precedent
to the effectiveness of this Agreement and/or any borrowing or other extension of credit hereunder
or (v) initiates or responds to legal process (all such non-excluded information being referred to
herein collectively as the “Communications”) by transmitting the Communications in an
electronic/soft medium (provided such Communications contain any required signatures) in a format
acceptable to the Agent to oploanswebadmin@citigroup.com (or such other e-mail address designated
by the Agent from time to time). The Borrower agrees that the Agent may make the Communications
available to the Lenders by posting such notices on Intralinks or a substantially similar
electronic system (the “Platform”). The Borrower acknowledges that (i) the distribution of
material through an electronic medium is not necessarily secure and that there are confidentiality
and other risks associated with such distribution, (ii) the Platform is provided “as is” and “as
available” and (iii) neither the Agent nor any of its Affiliates warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each expressly disclaims liability for
errors or omissions in the Communications or the Platform. No warranty of any kind, express,
implied or statutory, including, without limitation, any warranty of merchantability, fitness for a
particular purpose, non-infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the Platform.




          Each party hereto agrees that any electronic communication referred to in this Section 8.02(b)
shall be deemed delivered upon the posting of a record of such communication (properly addressed to
such party at the e-mail address provided to the Agent) as “sent” in the e-mail system of the
sending party or, in the case of any such communication to the Agent, upon the posting of a record
of such communication as “received” in the e-mail system of the Agent; provided that if such
communication is not so received by the Agent during the normal business hours (Eastern Standard
Time) of the Agent, such communication shall be deemed delivered at the opening of business on the
next Business Day for the Agent.




          (c) Each Lender agrees that notice to it (as provided in the next sentence) (a
“Notice”) specifying that any Communications have been posted to the Platform shall
constitute effective delivery of such information, documents or other materials to such Lender for
purposes of this Agreement; provided that if requested by any Lender the Agent shall
deliver a copy of the Communications to such Lender by email or telecopier. Each Lender agrees (i)
to notify the Agent in writing of such Lender’s e-mail address to which a Notice may be sent by
electronic transmission (including by electronic communication) on or before the date such Lender
becomes a party to this Agreement (and from time to time thereafter to ensure that the Agent has on
record an effective e-mail address for such Lender) and (ii) that any Notice may be sent to such
e-mail address.




          SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.




          SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the other documents to
be delivered hereunder, including, without limitation, (A) all due diligence, syndication
(including printing, distribution and bank meetings), transportation, computer, duplication,
appraisal, consultant, and audit expenses and (B) the reasonable fees and expenses of counsel for
the Agent with respect thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on demand all costs and
expenses of the Agent and the Lenders, if any (including, without limitation, reasonable fees and
expenses of counsel), in connection with the enforcement (whether through negotiations, legal
proceedings or otherwise) of this Agreement, the Notes and the other documents to be delivered
hereunder, including, without limitation, reasonable fees and expenses of counsel for the Agent and
each Lender in connection with the enforcement of rights under this Section 8.04(a).




          (b) The Borrower agrees to indemnify and hold harmless the Agent and each Lender and each of
their Affiliates and their officers, directors, employees, agents and advisors (each, an
“Indemnified Party”) from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified






35









 







Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a defense in connection therewith) (i)
the Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances or (ii) the actual or alleged presence of Hazardous Substances
on any property of the Borrower or any of its Subsidiaries or any Environmental Action relating in
any way to the Borrower or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense resulted from such Indemnified Party’s gross negligence or willful misconduct.
In the case of an investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person, or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The Borrower also agrees not
to assert any claim for special, indirect, consequential or punitive damages against the Agent, any
Lender, any of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, arising out of or otherwise relating to the
Notes, this Agreement, any of the transactions contemplated herein or the actual or proposed use of
the proceeds of the Advances.




          (c) If any payment of principal with respect to any Eurodollar Rate Advance, or any such
Advance is Converted to a different Type of Advance (pursuant to Section 2.07(d) or (e), 2.09 or
2.11, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other reason),
other than on the last day of the Interest Period for such Advance, of if the Borrower fails to
borrow, prepay, Convert or continue any such Advance after notice has been given to the Agent in
accordance with Section 2.02(a), 2.05, 2.08 or 2.09, the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any resulting loss or expense (with interest if
appropriate) incurred by it or by an existing or prospective assignee or participant in the related
Advance, including (without limitation) any loss incurred in obtaining, liquidation or employing
deposits from third parties, but excluding loss of margin for the period after any such payment or
failure to borrow, prepay, Convert or continue; provided that such Lender shall have
delivered to the Borrower a certificate as to the amount of such loss or expense, which certificate
shall show in reasonable detail the basis for calculating such amount and shall be conclusive in
the absence of manifest error.




          (d) Without prejudice to the survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in Sections 2.10, 2.13 and 8.04 shall survive
the payment in full of principal, interest and all other amounts payable hereunder and under the
Notes.




          SECTION 8.05. Right of Set-off. Upon the occurrence and during the continuance of
any Event of Default and the declaration of the Advances to be due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the credit or the account
of the Borrower against any and all of the obligations of the Borrower now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such Lender shall have made
any demand under this Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender and its Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of set-off) that such
Lender and its Affiliates may have.




          SECTION 8.06. Binding Effect. This Agreement shall become effective (other than
Section 2.01, which shall only become effective upon satisfaction of the conditions precedent set
forth in Section 3.01) when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Initial Lender that such Initial Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the Agent and each
Lender and their respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior written consent of
the Lenders.




          SECTION 8.07. Assignments and Participations. (a) Each Lender may and, if demanded
by the Borrower (following a demand by such Lender pursuant to Section 2.10 or any indemnification
obligation by the Borrower with respect to such Lender under 2.13) upon at least five Business
Days’ notice to such Lender and the Agent, will assign to one or more Persons all or a portion of
its rights and obligations under this Agreement






36









 







(including, without limitation, all or a portion of
its Commitment, the Advances owing to it and the Note or Notes held by it); provided,
however, that (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement, (ii) except in the case of an
assignment to a Person that, immediately prior to such assignment, was a Lender or an assignment of
all of a Lender’s rights and obligations under this Agreement, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof unless the Borrower and the
Agent otherwise agree, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrower pursuant to this Section 8.07(a) shall be
arranged by the Borrower after consultation with the Agent and shall be either an assignment of all
of the rights and obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a
demand by the Borrower pursuant to this Section 8.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, together with any Note subject to such assignment and a
processing and recordation fee of $3,500 payable by the parties to each such assignment,
provided, however, that in the case of each assignment made as a result of a demand
by the Borrower, such recordation fee shall be payable by the Borrower except that no such
recordation fee shall be payable in the case of an assignment made at the request of the Borrower
to an Eligible Assignee that is an existing Lender. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Sections 2.10, 2.13 and 8.04 to the
extent any claim thereunder relates to an event arising prior to such assignment) and be released
from its obligations under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).




          (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the Borrower of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the Agent, such
assigning Lender or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of the obligations
that by the terms of this Agreement are required to be performed by it as a Lender.




          (c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii) give prompt notice thereof to the
Borrower.





37









 








          (d) The Agent shall maintain at its address referred to in Section 8.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.




          (e) Each Lender may sell participations to one or more banks or other entities (other than the
Borrower or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender’s obligations under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the Borrower therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent subject to such
participation.




          (f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 8.07, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower furnished to such Lender by or on
behalf of the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the confidentiality of any
Borrower Information relating to the Borrower received by it from such Lender in accordance with
the terms of Section 8.08.




          (g) Notwithstanding any other provision set forth in this Agreement, any Lender may at any
time create a security interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and any Note or Notes held by it) in favor
of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.




          SECTION 8.08. Confidentiality. (a) The Agent and each Lender agrees (on behalf of
itself and each of its Affiliates, directors, employees and representatives) to use reasonable
precautions to keep confidential, in accordance with safe and sound banking practices, any
non-public information supplied to it by the Borrower pursuant to this Agreement after such
information is identified by the Borrower as being confidential (the “Borrower
Information”), provided that nothing herein shall limit the disclosure of any such
information (i) to the extent required by statute, rule, regulation or judicial process, provided
that the Borrower is given prompt written notice (to the extent permitted by law) that such
disclosure is required, (ii) to counsel for the Agent or such Lender, (iii) to bank examiners,
auditors or accountants, (iv) in connection with any litigation to which the Agent or such Lender
is a party, provided that the Borrower has been given prompt prior written notice (to the extent
permitted by law) of such proposed disclosure or (v) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or participant (or prospective assignee or
participant), or any actual or proposed contractual counterparty (or its advisors) to any
securitization, hedge, or other derivative transaction relating to the parties’ obligations
hereunder, agrees in writing to be bound by the terms of this Section 8.08.




          (b) Notwithstanding anything herein to the contrary, the Borrower, and the Lender may disclose
to any and all persons, without limitation of any kind, the U.S. tax treatment and tax structure of
the Agreement and all materials of any kind (including opinions or other tax analyses) that are
provided to a Borrower or the Lender, as the case may be, relating to such U.S. tax treatment and
tax structure.




          SECTION 8.09. Governing Law. This Agreement and the Notes shall be governed by,
and construed in accordance with, the laws of the State of New York.





38









 








          SECTION 8.10. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement
by telecopier shall be effective as delivery of a manually executed counterpart of this Agreement.




          SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties hereto hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the Notes, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State court or, to the extent
permitted by law, in such federal court. The Borrower hereby irrevocably consents to the service of
process in any action or proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to the Borrower at its address specified pursuant to
Section 8.02. Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law, provided that this sentence shall not limit the
right of any party hereto to appeal any judgment. Nothing in this Agreement shall affect any right
that any party may otherwise have to bring any action or proceeding relating to this Agreement or
the Notes in the courts of any jurisdiction.




          (b) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter have to the laying
of venue of any suit, action or proceeding arising out of or relating to this Agreement or the
Notes in any New York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.




          SECTION 8.12. Patriot Act Notice. Each Lender and the Agent (for itself and not on
behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of 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 Lender or the Agent, as applicable, to identify the Borrower in accordance with the Patriot
Act. The Borrower shall provide, to the extent commercially reasonable, such information and take
such actions as are reasonably requested by the Agent or any Lender in order to assist the Agent
and the Lenders in maintaining compliance with the Patriot Act.




39









 








          SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the Agent and the Lenders
hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation, administration, performance or
enforcement thereof.




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




	 	 	 	 	 	 	 
	 	 	APPLIED MATERIALS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Robert M. Friess	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	CITICORP USA, INC.,	 	 
	 	 	     as Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Kathryn Song	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Vice President	 	 






40









 






Initial Lenders




Commitment




	 	 	 	 	 	 	 
	$150,000,000	 	CITICORP USA, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Kathryn Song	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Vice President	 	 






Syndication Agent




	 	 	 	 	 	 	 
	$150,000,000	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,	 	 
	 	 	SEATTLE BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Tatsuro Miyazaki	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Deputy General Manager	 	 






Documentation Agents




	 	 	 	 	 	 	 
	$90,000,000	 	JPMORGAN CHASE BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ William P. Rindfuss	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	$90,000,000	 	KEYBANK NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Kim A. Richmond	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Assistant Vice President	 	 






Lenders




	 	 	 	 	 	 	 
	$70,000,000	 	BANK OF AMERICA, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Fred L. Thorne	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	$70,000,000	 	MELLON BANK, N.A.	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ David B. Wirl	 	 
	 

	 	 	 	 	 	 
	 	 	Title: First Vice President	 	 
	 
	 	 	 	 	 	 
	$70,000,000	 	WILLIAM STREET COMMITMENT	 	 
	 	 	CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Mark Walton	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Assistant Vice President	 	 






41









 






	 	 	 	 	 	 	 
	$70,000,000	 	MORGAN STANLEY BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Daniel Twenge	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Authorized Signatory	 	 
	 
	 	 	 	 	 	 
	$70,000,000	 	INDUSTRIAL AND COMMERCIAL BANK	 	 
	 	 	OF CHINA LIMITED	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Jiang, Tao	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Head of Banking Dept.	 	 
	 
	 	 	 	 	 	 
	$70,000,000	 	DBS BANK LTD., LOS ANGELES AGENCY	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Andrew Ko	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:
	 	General Manager	 	 
	 
	 	 	 	 	 	 
	$70,000,000	 	CHINA CONSTRUCTION BANK CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Wei, Jian Guo	 	 
	 

	 	 	 	 	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	$30,000,000	 	BANK OF CHINA, NEW YORK BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By
	 	/s/ Richard Bradspies	 	 
	 

	 	 	 	 	 	 
	 	 	Title: Deputy General Manager	 	 






$1,000,000,000 Total of the Commitments




42









 





SCHEDULE I

APPLIED MATERIALS, INC.

CREDIT AGREEMENT

APPLICABLE LENDING OFFICES




	 	 	 	 	 	 	 	 	 
	 	 	 
	 	Name of Initial Lender	 	 	Domestic Lending Office	 	 	Eurodollar Lending Office	 
	 	 	 	 	 	 	 	 	 
	 	Bank of America, N.A.

	 	 	2001 Clayton Road

2nd Floor

CA4-702-02-25 Building B

Concord, CA 94520

Attn: Vilma Tang

T: 925 675-7336

F: 888 969-9285
	 	 	2001 Clayton Road

2nd Floor

CA4-702-02-25 Building B

Concord, CA 94520

Attn: Vilma Tang

T: 925 675-7336

F: 888 969-9285	 
	 	 	 	 	 	 	 	 	 
	 	Bank of China, New York
Branch

	 	 	410 Madison Avenue

New York, NY 10017

Attn: Yungtuen Lee/Patricia Tso

T: 212 935-3101 ext. 422/231

F: 646 840-1796
	 	 	410 Madison Avenue

New York, NY 10017

Attn: Yungtuen Lee/Patricia Tso

T: 212 935-3101 ext. 422/231

F: 646 840-1796	 
	 	 	 	 	 	 	 	 	 
	 	The Bank of Tokyo-Mitsubishi
UFJ, Ltd., Seattle Branch

	 	 	900 Fourth Avenue

Suite 4000

Seattle, WA 98164

Attn: Ellen Yuson

T: 213 488-3796

F: 213 613-1136
	 	 	900 Fourth Avenue

Suite 4000

Seattle, WA 98164

Attn: Ellen Yuson

T: 213 488-3796

F: 213 613-1136	 
	 	 	 	 	 	 	 	 	 
	 	China Construction Bank 

Corporation

	 	 	38 Nan Guang Ji Street

Xi’an 710002

China

Attn: Wang Hongtao

T: 86 29 8760 6229

F: 86 29 8760 6214
	 	 	38 Nan Guang Ji Street

Xi’an 710002

China

Attn: Wang Hongtao

T: 86 29 8760 6229

F: 86 29 8760 6214	 
	 	 	 	 	 	 	 	 	 
	 	Citicorp USA, Inc.

	 	 	Two Penns Way

New Castle, DE 19720

Attn:

T: 302 894-6016

F: 212 994-0961
	 	 	Two Penns Way

New Castle, DE 19720

Attn:

T: 302 894-6016

F: 212 994-0961	 
	 	 	 	 	 	 	 	 	 
	 	DBS Bank Ltd., Los Angeles
Agency

	 	 	445 South Figueroa Street

Suite 3550

Los Angeles, CA 90071

Attn: Ann Chiang

T: 213 627-0222

F: 213 627-0228
	 	 	445 South Figueroa Street

Suite 3550

Los Angeles, CA 90071

Attn: Ann Chiang

T: 213 627-0222

F: 213 627-0228	 
	 	 	 	 	 	 	 	 	 
	 	Industrial and Commercial
Bank
of China Limited

	 	 	Room 211 No. 55

Fuxingmennei Avenue

Xicheng Dist. 100032

Beijing P.R.C.

Attn: Shen Min

T: 86 10 66107982

F: 86 10 66108383
	 	 	Room 211 No. 55

Fuxingmennei Avenue

Xicheng Dist. 100032

Beijing P.R.C.

Attn: Shen Min

T: 86 10 66107982

F: 86 10 66108383	 
	 	 	 	 	 	 	 	 	 
	 	JPMorgan Chase Bank, N.A.

	 	 	1111 Fannin, 10th Floor

Houston, TX 77002

Attn: Idell Johnson 

T: 713 750-2531

F: 713 750-2938
	 	 	1111 Fannin, 10th Floor

Houston, TX 77002

Attn: Idell Johnson

T: 713 750-2531

F: 713 750-2938	 
	 	 	 	 	 	 	 	 	 





1









 






	 	 	 	 	 	 	 	 	 
	 	 	 
	 	Name of Initial Lender	 	 	Domestic Lending Office	 	 	Eurodollar Lending Office	 
	 	 	 	 	 	 	 	 	 
	 	KeyBank National Association

	 	 	601 108TH Avenue NE

5th Floor

Bellevue, WA 98004

Attn: Lisa Wright

T: 216 689-5023

F: 216 689-5962
	 	 	601 108TH Avenue NE

5th Floor

Bellevue, WA 98004

Attn: Lisa Wright

T: 216 689-5023

F: 216 689-5962	 
	 	 	 	 	 	 	 	 	 
	 	Mellon Bank, N.A.

	 	 	Room 4535, 1 Mellon Center

500 Grant Street

Pittsburgh, PA 15258

Attn: Teresa Hayward

T: 412 234-4744

F: 312 209-6134
	 	 	Room 4535, 1 Mellon Center

500 Grant Street

Pittsburgh, PA 15258

Attn: Teresa Hayward

T: 412 234-4744

F: 312 209-6134	 
	 	 	 	 	 	 	 	 	 
	 	Morgan Stanley Bank

	 	 	2500 Lake Park Blvd.

Suite 300 C

West Valley City, UT 84120

Attn: Noel Swift/Zoe Marnerou

T: 718 754-7278/4066

F: 718 233-2140
	 	 	2500 Lake Park Blvd.

Suite 300 C

West Valley City, UT 84120

Attn: Noel Swift/Zoe Marnerou

T: 718 754-7278/4066

F: 718 233-2140	 
	 	 	 	 	 	 	 	 	 
	 	William Street Commitment 

Corporation

	 	 	c/o Goldman, Sachs & Co.

30 Hudson Street, 17th Floor

Jersey City, NJ 07032

Attn: Pedro Ramirez

T: 917 343-8319

F: 212 428-1243
	 	 	c/o Goldman, Sachs & Co.

 30 Hudson Street, 17th Floor

Jersey City, NJ 07032

Attn: Pedro Ramirez

T: 917 343-8319

F: 212 428-1243	 
	 	 	 	 	 	 	 	 	 






2









 






EXHIBIT A — FORM OF

REVOLVING CREDIT

PROMISSORY NOTE




	 	 	 
	U.S.$                                        

	 	Dated:
                                        , 200_






          FOR VALUE RECEIVED, the undersigned, Applied Materials, Inc., a Delaware corporation (the
“Borrower”), HEREBY PROMISES TO PAY to the order of                                          (the
“Lender”) for the account of its Applicable Lending Office on the Termination Date (each as
defined in the Credit Agreement referred to below) the principal sum of U.S.$[amount of the
Lender’s Commitment in figures] or, if less, the aggregate principal amount of the Advances made by
the Lender to the Borrower pursuant to the Credit Agreement dated as of January 26, 2007 among the
Borrower, the Lender and certain other lenders parties thereto, and Citicorp USA, Inc., as Agent
for the Lender and such other lenders (as amended or modified from time to time, the “Credit
Agreement”; the terms defined therein being used herein as therein defined) outstanding on the
Termination Date.




          The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.




          Both principal and interest are payable in lawful money of the United States of America to
CUSA, as Agent, at 388 Greenwich Street, New York, New York 10013, in same day funds. Each Advance
owing to the Lender by the Borrower pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any transfer hereof,
endorsed on the grid attached hereto which is part of this Promissory Note.




          This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.




	 	 	 	 	 	 	 
	 	 	APPLIED MATERIALS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 






 









 






ADVANCES AND PAYMENTS OF PRINCIPAL




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	Amount of	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Amount of	 	 	 	Principal Paid	 	 	 	Unpaid Principal	 	 	 	Notation	 	 
	 	Date	 	 	Advance	 	 	 	or Prepaid	 	 	 	Balance	 	 	 	Made By	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 





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EXHIBIT B — FORM OF NOTICE OF

BORROWING




Citicorp USA, Inc., as Agent

     for the Lenders parties

     to the Credit Agreement

     referred to below

     Two Penns Way

     New Castle, Delaware 19720




[Date]




          Attention: Bank Loan Syndications Department



Ladies and Gentlemen:




          The undersigned, Applied Materials, Inc., refers to the Credit Agreement, dated as of January
26, 2007 (as amended or modified from time to time, the “Credit Agreement”, the terms
defined therein being used herein as therein defined), among the undersigned, certain Lenders
parties thereto and Citicorp USA, Inc., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests
a Borrowing under the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the
Credit Agreement:





     (i) The Business Day of the Proposed Borrowing is                     , 200_.




     (ii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advances]
[Eurodollar Rate Advances].




     (iii) The aggregate amount of the Proposed Borrowing is $                     .




     [(iv) The initial Interest Period for each Eurodollar Rate Advance made as part of the
Proposed Borrowing is ___month[s].]



          The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:





     (A) the representations and warranties contained in Section 4.01 of the Credit
Agreement (except the representations set forth in Section 4.01(d)(ii)) are correct, before
and after giving effect to the Proposed Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date; and



 









 






     (B) no event has occurred and is continuing, or would result from such Proposed
Borrowing or from the application of the proceeds therefrom, that constitutes a Default.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	APPLIED MATERIALS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:.	 	 






2









 






EXHIBIT C — FORM OF

ASSIGNMENT AND ACCEPTANCE




          Reference is made to the Credit Agreement dated as of January 26, 2007 (as amended or modified
from time to time, the “Credit Agreement”) among Applied Materials, Inc., a Delaware
corporation (the “Borrower”), the Lenders (as defined in the Credit Agreement) and Citicorp
USA, Inc., as agent for the Lenders (the “Agent”). Terms defined in the Credit Agreement
are used herein with the same meaning.




          The “Assignor” and the “Assignee” referred to on Schedule I hereto agree as follows:




          1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
the Credit Agreement as of the date hereof equal to the percentage interest specified on Schedule 1
hereto of all outstanding rights and obligations under the Credit Agreement. After giving effect
to such sale and assignment, the Assignee’s Commitment and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.




          2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the financial condition of
the Borrower or the performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto; and (iv) attaches
the Note[, if any] held by the Assignor [and requests that the Agent exchange such Note for a new
Note payable to the order of [the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto or new Notes payable to the order of the Assignee in an amount equal to
the Commitment assumed by the Assignee pursuant hereto and] the Assignor in an amount equal to the
Commitment retained by the Assignor under the Credit Agreement, [respectively,] as specified on
Schedule 1 hereto.




          3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in Section 4.01 thereof and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers and discretion as are reasonably incidental thereto; (v)
agrees that it will perform in accordance with their terms all of the obligations that by the terms
of the Credit Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S.
Internal Revenue Service forms required under Section 2.13 of the Credit Agreement.




          4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this Assignment and
Acceptance (the “Effective Date”) shall be the date of acceptance hereof by the Agent,
unless otherwise specified on Schedule 1 hereto.




          5. Upon such acceptance and recording by the Agent, as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to
the extent provided in this Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Credit Agreement.














 








          6. Upon such acceptance and recording by the Agent, from and after the Effective Date, the
Agent shall make all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal, interest and facility
fees with respect thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods prior to the Effective
Date directly between themselves.




          7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.




          8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.




          IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to this Assignment
and Acceptance to be executed by their officers thereunto duly authorized as of the date specified
thereon.




2









 








Schedule 1

to

Assignment and Acceptance




	 	 	 	 	 	 	 	 	 
	Percentage interest assigned:
	 	 	 	 	 	 	 	%
	 
	 	 	 	 	 	 	 	 
	 
	Assignee’s Commitment:
	 	 	 	 	 	$	 	 
	 
	 	 	 	 	 	 	 	 
	 
	Aggregate outstanding principal amount of Advances assigned:
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	Principal amount of Note payable to Assignee:
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 
	Principal amount of Note payable to Assignor:
	 	$	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 





Effective Date * : _______________, 200_




	 	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR], as Assignor	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 
	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 

	 	Dated: 
	                                        , 200_	 	 
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE], as Assignee	 	 
	 
	 	 	 	 	 	 
	 

	 	By	 	 	 	 
	 

	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Dated: 
	                                        , 200_	 	 
	 
	 	 	 	 	 	 
	 	 	Domestic Lending Office:	 	 
	 

	 	          [
	 	Address]	 	 
	 
	 	 	 	 	 	 
	 	 	Eurodollar Lending Office:	 	 
	 

	 	          [
	 	Address]	 	 








 




			
	*	 	This date should be no earlier than five
Business Days after the delivery of this Assignment and Acceptance to the
Agent.




3









 










Accepted [and Approved] **  this

                                         day of                                   
, 200_




	 	 	 	 	 	 	 
	CITICORP USA, INC., as Agent	 	 	 	 
	 
	 	 	 	 	 	 
	By
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 






[Approved this                      day

of                                         , 200_




APPLIED MATERIALS, INC.




By                            
                           
                                     ] *

        Title:






 




			
	**	 	Required if the Assignee is an Eligible
Assignee solely by reason of clause (iii) of the definition of “Eligible
Assignee”.
	 
	*	 	Required if the Assignee is an Eligible
Assignee solely by reason of clause (iii) of the definition of “Eligible
Assignee”.






4